UC-NRLF 


$B    M7    277 


GIFT   OF 
Professor  Ray 


•^BUSl'^iUll^MtVHWMltili^. 


CONSTITUTIONAL  CONVENTION 


i|.ir!\:  0'-4  •    rW.on^'j'f''- 


Constitution  of  the  State  of 


Illinois 


ANNOTATED 


Compiled  and  Published  by  the 


LEGISLATIVE  REFERENCE  BUREAU 


[Prinrpfl    by    iinrhority   of   the    State   oi    Illinois.] 


FROM 

p.  O.  RAY 
HARRIS    HALL 
y/ANSTON.  ILL 


CONSTITUTIONAL  CONVENTION 


Constitution  of  the  State  of  Illinois 


ANNOTATED 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

[Printed  by   authority   of  the   State   of   Illinois.] 


A 


ScHNEPP  &  Barnes,  Printers 

Springfield,  III. 

1919. 

28574— IM 


n^P^ 


i'\ 


ji70 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden^  Chairman. 
Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr^  Joliet. 
Representative   Edward  J.    Smejkal,    Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie',  Secretary 

W.  F.  DoDD,  in  charge  collection  of  data  for 
constitutional  convention. 


iv!571085 


PREFACE. 

The  present  constitution  of  the  State  of  Illinois  was  adopted 
by  the  people  on  July  2,  1870,  and  became  operative  on  August  8, 
1870.  In  the  .course  of  nearly  fifty  years  the  Supreme  Court  of 
Illinois  has,  in  hundreds  of  judicial  decisions,  construed  most  of  the 
provisions  of  the  constitution.  By  these  decisions  the  meaning  of 
some  constitutional  provisions  has  been  restricted  and  that  of  other 
provisions  has  been  enlarged  or  elaborated.  The  meaning  of  but 
a  few  of  the  provisions  of  the  constitution  of  1870  can  be  ascer- 
tained merely  by  reading  the  constitutional  language.  Generally, 
the  full  purport  of  a  provision  of  that  instrument  can  be  determined 
only  by  considering  it  in  connection  with  the  judicial  interpreta- 
tion that  has  been  placed  upon  it.  For  these  reasons,  it  has  been 
thought  that  a  publication,  which  would  state  briefly  under  each 
section  of  the  constitution  the  judicial  construction  of  the  pro- 
visions of  that  section,  might  be  of  value  to  the  delegates  to  the 
constitutional  convention ;  and  this  is  the  primary  purpose  of  this 
volume.  The  discussion  under  each  section  of  the  constitution, 
however,  is  not  limited  to  a  statement  of  the  decisions  of  the  Su- 
preme Court  based  on  that  section.  Opinions  of  the  Attorney  Gen- 
eral and  veto  messages  of  the  Governor,  which  construe  or  apply 
the  provisions  of  the  constitution,  have  also  been  considered. 

Some  provisions  of  the  present  constitution  are  similar  to  those 
of  the  constitutions  of  1818  and  1848.  It  is  clear  that  decisions  of 
the  Supreme  Court  construing  provisions  of  the  earlier  constitu- 
tions have  an  important  bearing  upon  similar  provisions  of  the  con- 
stitution of  1870.  Again,  some  provisions  of  the  present  consti- 
tution were  adopted  for  the  express  purpose  of  retaining  or  over- 
coming the  results  of  previous  judicial  decisions.  The  earlier  de- 
cisions also  have  an  important  bearing  on  such  provisions.  In  the 
preparation  of  this  publication  it  has  been  deemed  necessary,  there- 
fore, to  examine  all  of  the  constitutional  decisions  of  the  Supreme 
Court,  both  before  and  after  the  adoption  of  the  present  consti- 
tution. In  order  to  do  this  volumes  1  to  289,  both  inclusive,  of 
the  Illinois  Supreme  Court  Reports  have  been  consulted.  It  is 
interesting  to  note  that  these  volumes  of  the  Supreme  Court  Re- 
ports extend  over  a  period  of  almost  one  hundred  years,  from  the 
December  Term,  1819,  to  the  October  Term,  1919.  All  of  the 
available  opnions  of  the  Attorney  General  have  been  consulted, 
but  it  must  be  borne  in  mind  that  the  opinions  of  that  officer  have 
been  published  only  since  1893.  All  veto  messages  of  the  Governor 
since  1870  have  also  been  examined. 

Wherever  possible,  the  discussion  of  the  Supreme  Court  de- 
cisions, Attorney  General's  opinions  and  veto  messages  relating  to 
a  particular  section  of  the  constitution  has  been  arranged  and  classi- 
fied   under   appropriate   subheadings.      All    statements    made    in    the 


discussion  under  each  section  of  the  constitution  are  accompanied 
by  references  to  footnotes  which  contain  citations  of  the  Supreme 
Court  decisions,  Attorney  General's  opinions,  or  veto  messages  sup- 
porting the  statements.  It  has  been  impossible,  of  course,  to  dis- 
cuss all  of  the  judicial  decisions.  Attorney  General's  opinions  and 
veto  messages,  or  even  to  cite  them  in  the  foot  notes.  Many  of  the 
decisions,  opinions  and  veto  messages  are  merely  cumulative  and 
add  nothing  to  the  construction  that  has  been  placed  upon  the 
provisions  of  the  constitution.  Sofne  sections  of  the  constitution 
have  been  construed  or  applied  so  frequently  that  it  would  be 
utterly  impossible,  in  a  publication  of  this  character,  to  present  a 
clear  statement  of  each  decision,  opinion  or  veto  message  involving 
those  sections.  For  example,  the  "due  process  of  law"  clause  (arti- 
cle 2,  section  2)  has  been  applied  in  almost  five  hundred  decisions 
of  the  Supreme  Court,  and  in  a  large  number  of  the  opinions  of  the 
Attorney  General.  Many  of  these  decisions  and  opinions  are  rela- 
tively unimportant  in  so  far  as  the  interpretation  of  that  section  is 
concerned.  It  is  apparent  that  the  discussion  of  all  of  these  de- 
cisions and  opinions,  or  even  the  citation  of  them  in  the  footnotes, 
would  result  in  confusion.  For  this  reason  only  the  important  deci- 
sions, opinions  and  veto  messages  are  discussed  or  cited  in  this 
volume.  It  must  be  remembered,  however,  that  the  statements  as 
to  the  interpretation  which  has  been  placed  upon  the  provisions 
of  the  constitution  are  based  upon  a  careful  study  of  all  of  the  de- 
cisions, opinions  and  veto  messages,  even  though  all  of  them  are 
not  discussed  or  cited. 

Attention  should  be  called  to  the  form  of  the  citation  of  veto 
messages.  Generally  veto  messages  may  be  found  in  the  journals 
of  the  senate  and  house  of  representatives,  or  in  pamphlets  contain- 
ing all  of  the  veto  messages  with  reference  to  bills  passed  by  the 
General  Assembly  at  a  particular  session.  It  is  only  in  recent 
years,  however,  that  pamphlets  containing  veto  messages  have 
been  published.  In  all  cases  where  veto  messages  are  available  in 
the  journals,  or  in  pamphlet  form,  references  are  made  either  to  the 
journals  or  the  pamphlets.  In  a  few  cases,  however,  veto  messages 
can  be  obtained  only  by  consulting  the  records  in  the  office  of  the 
Secretary  of  State.  Copies  have  been  made  of  the  messages  obtain- 
able only  from  the  records  in  the  office  of  the  Secretary  of  State, 
and  are  on  file  in  the  office  of  the  Legislative  Reference  Bureau. 
The  messages  on  file  in  the  office  of  the  Legislative  Reference 
Bureau  have  been  given  arbitrary  numbers  for  reference  pur- 
poses and  may  be  procured  from  that  office. 

The  text  of  the  constitution  of  1870  as  it  appears  in  this  volume 
has  been  compared  with  the  original  document  on  file  in  the  office 
of  the  Secretary  of  vState,  and  is  an  exact  copy  of  that  instrument. 

This  volume  also  contains  a  full  and  complete  index  of  the 
constitution  of  1870  by  articles  and  sections. 

Legislative  Reference  Bureau. 
December,  1919. 


TABLE  OF  CONTENTS. 


CONSTITUTION    OF    1870 

PAGE. 

Preamble    13 

Article  I — Boundaries    15 

Article  II — Bill   of   rights 19 

Section     1.  Inherent  and  inalienable  rights 19 

Section     2.  Due  process  of  law 19 

Section     3.  Religious   freedom 29 

Section     4.  Freedom    of    speech 30 

Section     5.  Right  of  trial  by  jury 31 

Section     6.  Unreasonable  searches  and  seizures 35 

Section     7.  Bail,  writ  of  habeas  corpus 37 

Section     8.  Indictment,  grand  jury 37 

Section     9.  Rights  of  persons  accused  of  crime 38 

Section  10.  Self  crimination,  jeopardy 43 

Section  11.  Penalties,  corruption  of  blood,  forfeiture  of  estate  46 

Section  12.  Imprisonment  for  debt, . . '. 47 

Section  13.  Eminent  domain 48 

Section  14.  Ex  post  facto  laws,  contracts,  irrevocable  grants...  55 

Section  15.  Military  subordinate  to  civil  power 60 

Section  16.  Quartering    of    soldiers 61 

Section  17.  Right  of  assembly  and  petition 61 

Section  18.  Elections  to  be  free  and  equal 61 

Sectoin  19.  Protection  of  the  laws 62 

Section  20.  Fundamental  principles 63 

Article  III — Distribution   of   powers ^^ 

Article  IV — Legislative   department ^^ 

Section     1.     General  Assembly 73 

Section     2.     Elections,  vacancies 76 

Section     3.     Eligibility 77 

Section     4.     Disqualifications 78 

Section     5.     Oath  of  office 79 

Section     6.     Senatorial  apportionment 79 

Sees.  7  &  8.     Minority  representation 80 

Section     9.     Time  of  meeting,  general  rules 83 

Section  10.  Onen  sessions,  adjournments,  journals,  protests....     84 

Section  11.     Style  of  laws 85 

Section  12.     Origin  and  passage  of  bills. 85 

Section  13.     Reading,   printing,   title,   amendments 87 

Section  14.     Privileges  of  members 97 

Section  15.     Disability  of  members 98 

Section  16.     Appropriations 98 

Section  17.     Payment  of  money,  statement  of  expenses 100 

Section  18.  Ordinary  expenses,  casual  deficits,  appropriations 

limited 101 

Section  19.     Extra  compensation  or  allowance 103 

Section  20.     Public  credit  not  to  be  loaned 104 

Section  21.     Pay  and  mileage  of  members 105 

Section  22,     Special  legislation  prohibited 110 

Section  23.     No  power  to  release  obligations  to  state 121 


TABLE   OF  CONTENTS. 

Article  IV — Legislative  Department — Concluded.  page. 

Section  24.     Proceedings  on  impeachment 121 

Section  25.     Fuel,  stationery,  and  printing 122 

Section  26.     State  not  to  be  sued 122 

Section  27.     Lotteries  and   gift   enterprises 123 

Section  28.     Terms  of  office  not  to  be  extended 123 

Section  29.     Protection    of    miners 123 

Section  30.     Roads,  public  and  private 124 

Section  31.     Drainage : 124 

Section  32.     Homestead  and  exemption  laws 126 

Section  33.     Completion  of  the  state  house 126 

Section  34.     Special  legislation  for  Chicago  permitted 127 

Article  V — Executive   department l^l 

Section     1.     Executive   department 131 

Section     2.     State    Treasurer 132 

Section     3.     Time   of   electing   state   officers 132 

Section     4.     Returns,  tie,  contested  election 133 

Section     5.     Eligibility 133 

Section     6.     Governor,  powers  and  duties 134 

Section     7.     His  message  and   statement 134 

Section     8.     Special  sessions  of  General  Assembly 135 

Section     9.     Power  to  prorogue  General  Assembly.  •  •  •  • 135 

Section  10.     Appointments 136 

Section  11.     Vacancies 137 

Section  12.     Power  to  remove  officers 138 

Section  13.     Reprieves,  commutations,  pardons. 139 

Section  14.     Commander-in-chief  of  army  and  navy 140 

Section  15.     Impeachment  of  civil  officers 141 

Section  16.     Veto  power 141 

Section  17.     Lieutenant  Governor 145 

Section  18.     President  of  the  senate 145 

Section  19.     Vacancy  in  office  of  Lieutenant  Governor 145 

Section  20.     Vacancy  in  other  state  offices 145 

Section  21.     Report  of  the  state  officers 146 

Section  22.     Great  seal  of  Illinois 146 

Section  23.     Fees  and   salaries 147 

Section  24.     "Office''   and   "employment"    defined 147 

Section  25.     Oath  of  civil  officers 149 

Article  VI — Judicial   department ^^^ 

Section     1.     Courts    established 151 

Section     2.     Supreme  Court,  jurisdiction 153 

Section     3.     Qualifications  of  Supreme  Court  judges 156 

Section     4.     Terms  of  the  Supreme  Court 156 

Section     5.     Grand    divisions,    districts 156 

Section     6.     Election  of  Supreme  Court  judges 159 

Section     7.     Salaries  of  the  Supreme  Court  judges 160 

Section     8.     Appeals  and  writs  of  error 161 

Section    9.     Reporter 161 

Section  10.     Clerks  of  the  Supreme  Court 161 

Section  11.     Appellate  courts  authorized 161 

Section  12.     Circuit  courts,  jurisdiction 162 

Section  13.     Judicial  circuits 163 

Section  14.     Time  of  holding  circuit  courts 164 

Section  15.     Increase  in  number  of  circuit  judges 165 

Section  16.     Salaries  of  the  circuit  judges • 165 

Section  17.  Qualifications  of  judges  and  county  commissioners.  166 

Section  18.     County  judges,  county  clerks 166 

Section  19.     Appeals  from  county  courts 169 


IX 


TABLE   OF  CONTENTS. 


Article  VI — Judicial  Department — Concluded.  page. 

Section  20.     Probate  courts   authorized 169 

Section  21.     Justices  of  the  peace  and  constables 170 

Section  22.     State's  attorneys 171 

Section  23.     Cook  county  courts  of  record 171 

Section  24.     Powers  of  Cook  county  judges,  chief  justice 173 

Section  25.  Salaries  of  Cook  county  judges  and  state's  attorney  173 

Section  26.     Criminal  court  of  Cook  county 174 

Section  27.     Clerks  of  Cook  county  courts 175 

Section  28.     Justices  of  the  peace  in  Chicago 176^ 

Section  29.  Judicial  commissions,  uniformity  of  laws  relating 

to  courts 176 

Section  30.     Removal  of  judges 179" 

Section  31.     Written  reports  to  Governor 179' 

Section  32.     Terms  of  office,  vacancies 180^ 

Section  33.     Process,  prosecutions,  population 182" 

Article  VII — Suffrage     185' 


Section 
Section 
Section 
Section 
Section 
Section 
Section 


Qualifications  of  voters 

Ballot 

Privileges  of  electors 

Residence 

Persons  in  military  service  of  United  States. 

Qualifications   for   office 

Exclusion  from  suffrage 


185 
188 
189 
189 
189 
189 
190 


Article  VIII — Education    191 


Section     1.     Free  schools 

Section     2.     Gifts  or  grants  in  aid  of  schools 

Section     3.     Aid  to  sectarian  schools  prohibited 

Section     4.     Sale  of  textbooks,  teachers  and  officers  not  to 

interested   in 

Section     5.     County  superintendent  of  schools 


be 


Article  IX — Revenue 


Article  X — Counties 


Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 
Section 


191 
192 
193 

194 
194 

195 

195 
206: 
206- 

2ir 

212- 
214- 
217' 

217 

219) 
235 
235 
23ff 
24ff 

249- 

New  counties 249' 

Division  of  counties 249' 

Attaching  or  detaching  territory 249' 

Removal  of  county  seats 250' 

County  government,  township  organization 251 

Boards   of   county   commissioners 253* 

County  affairs  in  Cook  county 254 

County  officers,  terms  of  office 254 

Salaries  and  fees  in  Cook  county 255 


Section     1.  Taxation    by   valuation,    uniformity 

Section     2.  Taxation  of  other  subjects  or  objects. 

Section     3.  Exemptions 

Section     4.  Sale  of  real  property  for  taxes 

Section     5.  Right  of  redemption 

Section     6.  Release  from  taxation  forbidden 

Section     7.  Taxes  to  be  paid  into  state  treasury 

Section     8.  Limitation   on   county  taxes 

Section     9.  Special  assessment  and  special  taxation,  local  im- 
provements   

Section  10.  Municipal   taxation,   uniformity 

Section  11.  Defaulting    officers* , , . 

Section  12.  Limitation  on  municipal  indebtedness 

Section  13.  World's  Columbian   Exposition  bonds 


TABLE  OF  CONTENTS. 

Article  X  — Counties — Concluded.  page. 

Section  10.     Salaries  fixed  by  county  board 257 

section  11.     Fees  of  township  officers 260 

Section  12.     Fees  of  state,  county,  and  township  officers.. 260 

Section  13.     Verified    report    of    fees 262 

Article  XI — Corporations  263 

Section     1.     Organization    of   corporations 263 

Section     2.     Existing  charters 263 

Section     3.     Election  of  directors*  or  managers 264 

Section     4.     Street  railroads ' 265 

Section  5.  State  bank  forbidden,  laws  authorizing  banking 
corporations  to  be  general,  necessity  for  referen- 
dum    266 

Section     6.     Individual  responsibility  of  stockholders 268 

Section    7.     Specie   payment 269 

Section    8.     Provisions  to  be  contained  in  a  general  banking 

law 270 

Section     9.     Railroads,  transfer  offices,  reports 270 

Section  10.     Personal  property  of  railroads,  execution  and  sale..  270 

Section  11.     Consolidations 271 

Section  12.     Railroads  deemed  highways,  maximum  rates 272 

Section  13.     Stocks,  bonds,  and  dividends 273 

Section  14.     Eminent  domain 274 

Section  15.  Discrimination  and  extortion  in  freight  and  pas- 
senger rates 275 

Article  XII— Militia    277 

Section     1.  Persons  liable  to  duty 277 

Section     2.  Organization,   equipment,   discipline 277 

Section     3.  Officers 277 

Section     4,  Privileged   from   arrest 277 

Section     5.  Records,    banners,    relics 277 

Section     6.  Exemption  from  duty 277 

Article  XIII — Warehouses  279 

Section  1.     Public  warehouses 279 

Section  2.     Weekly   statements 280 

Section  3.     Examination  of  records  and  property  stored. 280 

Section  4.     Delivery  of  full  weights 280 

Section  5.     Delivery  of  grain  by  railroads 281 

Section  6.     Warehouse   receipts 282 

Section  7.     Grain  inspection 282 

Article  XIV — Amendments  to  constitution 283 

Section    1.     Convention 283 

Section     2.     Proposals   by  General   Assembly 284 

Sections  separately  submitted 287 

Illinois  Central  Railroad 287 

Minority    representation 288 

Municipal  subscriptions  to  railroads  or  private  corporations....  288 

Canals 290 

Convict   labor 292 

Schedule    293 

Section     1.     Saving    clause 293 

Section     2.     Fines,  taxes,  forfeitures 295 

Section     3.     Official  bonds,  crimes 295 

Section     4.     County  courts  continued 295 

Section     5.     Courts    continued 296 


xl 


TABLE   OF  CONTENTS. 

Schedule — Concluded  page. 

Section     6.     Officials   continued   in   office 297 

Section     7.     Elections  for  Supreme  and  circuit  court  judges.  ...  298 

Section     8.     Submission   of  constitution 299 

Section     9.     Poll  books,  tally  sheets 300 

Section  10.     Ballots 300 

Section  11.     Election  returns 301 

Section  12.     Constitution  in  force,   when 301 

Section  13.     Apportionment    for    representatives 302 

Section  14.     Numbering  of  districts 302 

Section  15.     Terms  of  senators 303 

Section  16.     Legislative   apportionment 303 

Section  17.     Election  of  constitutional  officers 303 

Section  18.     English  language 304 

Section  19.     Duty  of  General  Assembly  with  respect  to  laws  re- 
quired by  constitution 305' 

Section  20.     Circuit  clerks,   recorders 305- 

Section  21.     Salaries  of  judges  of  Cook  county  courts 305- 

Section  22.     Circuit  court  of  Lake  county 306 

Section  23.     Two  mill  tax  abolished 30& 

Section  24.     Aid  to  railroads  by  city  of  Quincy 307 

Section  25.     Effect  of  adoption   of  constitution 307 

Section  26.     Certain   provisions    of   constitution    in    immediate 

effect , 308 

Index    309 


CONSTITUTION  OF  THE  STATE  OF  ILLINOIS. 


Adopted  in  Convention  at  Springfield,  May  13th,  A.  D.  1870  ^ 

PREAMBLE. 

We,  the  people  of  the  State  of  Illinois — grateful  to  Almighty 
God  for  the  civil,  political  and  religious  liberty  which  He  hath  so 
long  permitted  us  to  enjoy,  and  looking  to  Him  for  a  blessing  upon 
our  endeavors  to  secure  and  transmit  the  same  unimpaired  to  suc- 
ceeding generations — in  order  to  form  a  more  perfect  government, 
establish  justice,  insure  domestic  tranquility,  provide  for  the  com- 
mon defense,  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity ;  do  ordain  and  establish  this 
Constitution  for  the  State  of  Illinois. 


1  Ratified  by  the  people,  July  2,  1870.    In  force,  Augrust  8,  1870.    Amendments 
were  adopted  in  1878,  1880,  1884,  1886,  1890,  1904,  and  1908. 


ARTICLE  I— BOUNDARIES 


The  boundaries  and  jurisdiction  of  the  State  shall  be  as  follows, 
towit :  Beginning  at  the  mouth  of  the  Wabash  river ;  thence  up  the 
same,  and  with  the  line  of  Indiana,  to  the  northwest  corner  of  said 
State ;  thence  east,  with  the  line  of  the  same  State,  to  the  middle  of 
Lake  Michigan ;  thence  north  along  the  middle  of  said  lake,  to  north 
latitude  forty-two  degrees  and  thirty  minutes;  thence  west  to  the 
middle  of  the  Mississippi  river,  and  thence  down  along  the  middle 
of  that  river  to  its  confluence  with  the  Ohio  river,  and  thence  up  the 
latter  river  along  its  northwestern  shore  to  the  place  of  beginning : 
Provided,  that  this  State  shall  exercise  such  jurisdiction  upon  the 
Ohio  river  as  she  is  now  entitled  to,  or  such  as  may  hereafter  be 
agreed  upon  by  this  State  and  the  State  of  Kentucky. 


The  act  of  Congress,  April  18,  1818,  enabling  the  people  of  Illinois  to 
form  a  state,  established  the  boundaries  of  Illinois.^  The  constitutions  of 
1818,  1848  and  1870  each  describe  the  boundaries  of  the  state  in  the  language 
used  in  the  enabling  act. 

The  precise  eastern  limit  is  not  defined  other  than  by  reference  to  the 
Wabash  river,  and  the  Indiana  state  line.  In  the  act  of  Congress,  February 
3,  1809,  dividing  the  Indiana  Territory  into  two  separate  governments  and 
establishing  the  territory  of  Illinois,  this  boundary  is  referred  to  as  "the 
Wabash  river,  and  a  direct  line  drawn  from  the  said  Wabash  river  and 
Post  Vincennes  due  north,  to  the  territorial  line  between  the  United  States 
and  Canada.''^*  This  is  substantially  the  language  of  the  ordinance  of  1787, 
for  the  government  of  the  Northwest  Territory.^  The  language  of  the 
enabling  act  for  Indiana,"  approved  April  19,  1816,  and  of  the  Indiana  con- 
stitution^ fix  this  boundary  "by  a  line  drawn  along  the  middle  of  the 
Wabash  river,  from  its  mouth  to  a  point  where  a  due  north  line  drawn 
from  the  town  of  Vincennes  would  last  touch  the  northwestern  shore  of  the 
said  river;  and  from  thence  by  a  due  north  line  .  .  ."  This  language 
plainly  includes  within  the  state  of  Illinois  whatever  territory  may  be  west 
of  the  Wabash  river,  south  of  the  point  where  the  Vincennes  line  due  north 
last  touches  the  Wabash  river,  even  though  such  land  may  lie  to  the  east 
of  a  line  due  north  from  Vincennes. 

The  Attorney  General  has  said:  "The  jurisdiction  of  this  state  over  the 
waters  of  the  Wabash  river  which  touch  the  counties  of  Lawrence  and 
Wabash  in  this  state,  extends  to  the  center  thread  of  the  main  channel 
thereof,  except  where  said  center  thread  may  be  east  of  a  line  drawn  from 
Post  Vincennes  due  north."*     This   inaccuracy  doubtless   arose  from  over- 


^Act   of   Congress,    3    Stat,    at   large    428    (1818). 

2  Act  of   Congress.    2    Stat,   at  large   514    (1809). 

3  Article  V.   Ordinance  of   1787. 

^-Act  of  Congress,   3   Stat,   at  large   289    (1816). 

5  Constitution   of   Indiana   1851.   article   14,    section   1. 

"Report  Attorney  General   1916,  p.   623. 


16  Article  1 

looking  the  fact  that  the  due  north  line  from  Vincennes  only  becomes  the 
eastern  boundary  from  the  point  where  it  last  touches  the  northwestern 
shore  of  the  Wabash  river,  which  point  lies  north  of  Lawrence  and  Wabash 
counties. 

By  the  ordinance  of  1787,  the  northern  boundary  for  the  western  state 
in  the  Northwest  Territory  was  fixed  along  the  territorial  line  between  the 
United  States  and  Canada  to  the  Lake  of  the  Woods  and  Mississippi  with 
the  proviso  that  Congress  should  have  authority  "to  form  one  or  two 
states  in  that  part  of  the  said  territory  which  lies  north  of  an  east  and 
west  line  drawn  through  the  southerly  bend  or  extreme  of  Lake  Michigan."^ 
The  bill  to  authorize  the  formation  of  the  state  of  Illinois  was  introduced 
with  the  northern  boundary  along  an  east  and  west  line  from  the  southern 
extreme  of  Lake  Michigan  but,  on  motion  of  the  territorial  delegate  from 
Illinois,  this  was  amended  by  fixing  the  northern  boundary  along  latitude 
forty-two  degrees  and  thirty  minutes.  The  due  north  line  from  Vincennes 
was  not  extended  to  meet  the  line  along  this  latitude  but  the  boundary  line 
from  the  northwest  corner  of  Indiana  was  run  east  along  the  northern  bound- 
ary of  Indiana  to  the  middle  of  Lake  Michigan  and  thence  north  along  the 
middle  of  the  lake  to  latitude  forty-two  degrees  and  thirty  minutes  and 
thence  west  along  that  latitude.  The  United  States  Supreme  Court  has  held 
that  the  boundary  of  the  state  includes  all  that  portion  of  Lake  Michigan 
lying  east  of  the  main  land  of  the  state  and  the  middle  of  the  lake  south 
of  latitude  forty-two  degrees  and  thirty  minutes.^ 

The  ordinance  of  1787  provided  that  the  western  state  in  the  North- 
west Territory  should  be  bounded  by  the  Mississippi  river.  This  boundary 
line  is  fixed  by  the  enabling  act  for  Illinois  "along  the  middle"  of  the 
Mississippi  river  from  the  northern  boundary  to  the  Ohio  river.  The  Su- 
preme Court  of  Illinois  and  the  United  States  Supreme  Court  have  held  this 
to  mean  the  middle  of  the  main  navigable  channel  as  usually  followed.  If 
the  river  changes  imperceptibly  from  natural  causes,  the  river  as  it  runs, 
continues  to  be  the  boundary,  but  if  it  should  suddenly  change  its  course 
or  desert  the  original  channel,  the  boundary  would  remain  the  middle  of 
the  deserted  bed.® 

The  deed  of  cession  from  Virginia  conveyed  to  the  United  States  the 
territory  northwestward  of  the  river  Ohio.^'*  The  United  States  Supreme 
Court  in  deciding  whether  certain  land  lay  in  Kentucky  or  in  Indiana,  said 
"when  a  great  river  is  the  boundary  between  two  nations  or  states,  if  the 
original  property  is  in  neither  and  there  be  no  convention  respecting  it, 
each  holds  to  the  middle  of  the  stream.  But  when,  as  in  this  case,  one 
state  is  the  original  proprietor  and  grants  the  territory  on  one  side  only, 
it  retains  the  river  within  its  own  domain,  and  the  newly  created  state 
extends  to  the  river  only.     The  river,  however,  is  its  boundary."" 

The  same  court  in  a  later  case  held  that  the  state  of  Kentucky  ex- 
tended to  ]ow  water  mark  on  the  Indiana  shore.^^  The  boundary  line 
between  Illinois  and  Kentucky  is,  also  undoubtedly,  the  low  water  mark  on 
the  northwestern  shore  of  the  Ohio  river.  The  Illinois  Supreme  Court  held 
that  there  was  no  liability  under  the  workmen's  compensation  act  for  a 
death  occurring  while  the  deceased  was  working  on  a  bridge  pier  south  of 
the  low  water  mark  of  the  Ohio  river  on  the  Illinois  shore."  In  an  earlier 
case,  the  same  court  in  sustaining  the  wharfage  rights  of  a  riparian  owner 
on  the  northwestern  bank  of  the  Ohio  river  said  that  the  property  of  a 
riparian  owner  extended  at  least  to  low  water  mark  "although  as  the  state 


'Article  V.  Ordinance  of  1787. 

8  1.   C.   R.   R.   Co.   V   Illinois.    146   U.   S.   387    (1892). 

9  St.  Louis  V  Rutz.  138  U.  S.  226  (1891);  Iowa  v  Illinois,  147  U.  S.  1  (1893); 
Buttenuth  v  St.  Louis  Bridge  Co..  125  111.  535  (1888);  Keokuk  and  Hamilton 
Bridge  Co.  v  People.  145  111.  596  (1893);  Keokuk  and  Hamilton  Bridge  Co.  v 
People.    176   111.   267    (1898). 

10  Deed  of  Cession,   XI  Hen.   Stat.   Va.   571    (1784). 
"Handley's   Lessee   v  Anthony,    5   Wheaton    (U.   S.)    374    (1820). 
"Henderson    Bridge   Co.    v   Henderson    City,    173    U.    S.    592    (1899). 
"Union  Bridge  Co.   v   Industrial  Commission,    287   111,   396    (1919). 


Article  1  17 

of  Kentucky  originally  owned  the  fee  of  the  river  to  that  point,  it  may  be, 
in  this   case,   it  extended  no  further."" 

While  the  physical  boundary  of  Illinois  extends  to  the  middle  of  the 
Wabash  and  Mississippi  rivers  and  to  the  low  water  mark  of  the  Ohio  river 
on  the  Illinois  shore,  its  jurisdiction  on  these  rivers  extends  further.  By  the 
enabling  acts  of  Congress  for  Illinois,^"  and  Indiana,^"  each  state  is  given 
concurrent  jurisdiction  over  the  Wabash  river  so  far  as  it  forms  the  common 
boundary.  The  same  is  true  as  to  the  Mississippi  river  where  it  is  the 
boundary  between  Illinois  and  lowa,^'  and  Illinois  and  Missouri." 

An  act  of  Virginia  concerning  the  formation  of  a  state  from  the  dis- 
trict of  Kentucky,  provided  that  "the  respective  jurisdictions  of  this  common- 
wealth (Virginia)  and  of  the  proposed  state,  (Kentucky)  on  the  (Ohio) 
river  as  aforesaid,  shall  be  concurrent  only  with  the  states  which  may  possess 
the  opposite  shores  of  the  said  river. '"^  The  United  States  Supreme  Court 
held  that  this  compact  between  Virginia  and  Kentucky  had  been  sanctioned 
by  Congress  and  had  become  a  law  of  the  union.  The  court  does  not,  in  this 
case,  attempt  to  say  precisely  what  is  meant  by  concurrent  jurisdiction  but 
does  say  that  it  is  not  only  legislative  jurisdiction  but  includes  the  right  to 
administer  the  law  on  the  river.  Consequently,  it  was  held  that  process  of  an 
Indiana  court  might  properly  be  served  on  the  Ohio  river  near  the  Ken- 
tucky shore.-"  This  case  is  referred  to  in  a  recent  decision  of  the  Illinois 
Supreme  Court  denying  compensation  under  the  workmen's  compensation 
act  for  an  accident  on  a  bridge  pier  extending  from  the  Illinois  shore  into 
the  Ohio  river.  "The  exact  nature,"  the  court  said,  "of  the  concurrent 
jurisdiction  does  not  seem  to  have  been  adjudicated  ...  If  this  state 
may  enact  laws  operative  on  the  Ohio  river,  the  Supreme  Court  of  the 
United  States  has  limited  such  jurisdiction  to  laws  relating  to  rights  and 
liabilities  on  the  river  .  .  .  and  not  to  structures  attached  to  the 
river  bed  and  within  the  boundary  of  one  or  the  other  state. "-"^  This  de- 
cision, however,  is  based  partly  on  the  ground  that  the  Illinois  statute  by 
its  terms,  cannot  be  given  extra-territorial  effect.  The  Attorney  General 
has  said  that  the  authority  of  the  state  of  Illinois  to  enforce  its  fish  and 
game  laws  on  those  rivers  that  form  a  part  of  the  state's  boundaries  or 
on  so  much  of  those  rivers  as  form  the  boundary,  extends  not  only  to  the 
Illinois  side  or  to  the  centef  of  the  channel  but  all  the  way  across  the 
stream.-^ 

The  constitution  of  1848  added  to  the  article  on  boundaries,  .a  proviso  au- 
thorizing this  state  to  exercise  such  jurisdiction  upon  the  Ohio  river  as  it  is 
now  entitled  to  or  such  as  may  hereafter  be  agreed  upon  by  this  state  and 
the  state  of  Kentucky.  This  proviso  was  adopted  without  change  in  the 
article  on  boundaries  in  the  constitution  of  1870,  but  apparently  no  attempt 
has  been  made  on  the  part  of  either  Illinois  or  Kentucky  to  enter  into  any 
such  agreement. 


i^Ensminger  v  People,  47  111.  384  (1867). 
i=Act  of  Congress,  3  Stat,  at  large  428  (1818). 
i«Act  of  Congress,  3  Stat,  at  large  289  (1816). 
"Act  of  Congress,  5  Stat,  at  large  742  (1845). 
i^Act  of  Congress,  3  Stat,  at  large  545  (1820). 
19  Act  of  Virginia.  XIII  Hen.  Stat.  Va.  19  (1789). 
""Weddiner   v   Meyler.    192    U.   S.   573    (1904). 

-1  Union    Bridge    Co.    v    Industrial    Commission.    287    111.    396    (1919). 
^Report   Attorney    General    1917-18,    p.    501;    but   see   Report  Attorney   Gen- 
eral   1912,    p.    1317. 


ARTICLE  II— BILL  OF  RIGHTS 


Section  1.  All  men  are  by  nature  free  and  independent,  and 
have  certain  inherent  and  inalienable  rights — among  these  are  life, 
liberty  and  the  pursuit  of  happiness.  To  secure  thes(i  rights  and  the 
protection  of  property,  governments  are  instituted  among  men,  de- 
riving their  just  powers  from  the  consent  of  the  governed. 


(See  reference   to   this  section   in   discussion   article   2,   section   2,   sub- 
heading, "Historical  development".) 


Section  2.     No  person  shall  be  deprived  of  life,  liberty  or  prop- 
erty, without  due  process  of  law. 


Historical  development.  The  constitutions  of  1818  and  1848  contain  the 
famous  provision  from  Magna  Charta  "that  no  freeman  shall  be  .  .  . 
deprived  of  his  life,  liberty  or  property  but  by  the  judgment  of  his  peers  or 
the  law  of  the  land."  In  the  constitution  of  1870  the  same  guarantee  appears 
with  the  phrase  "due  process  of  law."  It  is  generally  agreed  that  this  change 
in  phraseology  is  not  a  change  in  substance  but  that  the  legal  effect  of  these 
expressions  is  the  same.  There  has  been,  however,  an  expansion  by  judicial 
construction,  of  the  content  and  scope  of  the  protection  afforded  by  this 
clause.  It  was  regarded  at  first  merely  as  a  requirement  that  the  taking  of 
the  rights  of  the  individual  by  the  state  be  in  accordance  with  certain  estab- 
lished and  fundamental  rules  of  procedure.  But  about  1870  a  tendency  de- 
veloped to  extend  the  protection  of  the  constitution  along  lines  not  expressly 
protected.  In  the  search  for  constitutional  limitation  against  legislation 
which,  in  the  opinion  of  the  court,  unjustifiably  violated  private  right,  refer- 
ence was  made  to  some  of  the  broad  declarations,  such  as  section  1  of  this 
article,  which  had  before  been  regarded  as  "glittering  generalities."^  But 
with  the  development  of  section  2  as  a  test  of  the  substance  of  legislation,  the 
court  found  in  it  the  principal  prohibition  against  the  imposition  of  restraints 
and  burdens  upon  persons  and  property  which  the  court  deemed  oppressive 
and  unreasonable.  In  1886"  began  a  decided  advance  in  the  exercise  of  ju- 
dicial power  under  the  due  process  clause  and  since  that  time  there  has  been 
a  steady  increase  in  the  number  of  important  statutes  declared  unconstitu- 
tional upon  the  basis  of  it.  As  a  limitation  upon  procedure  this  section  has 
occasioned  relatively  little  difficulty  but  the  court  has  established  no  definite 
standard  for  its  application  as  a  test  of  the  substance  of  statutory  enact- 
ments. 

While  this  section  has  been  invoked  in  the  great  majority  of  instances 
in  connection  with  legislative  action,  it  is  directed  to  the  executive  and  judi- 


^  People   v    Turner.    .^.'^    TU.    280    (1870). 
^Milieu  V  People,    117   111.   294    (1886). 


19 


20  Article  2,  Section  2 

cial  authorities  of  the  state  as  well,  and  to  all  officers  and  agents  by  whom  the 
powers  of  the  state  are  exerted.  Thus,  a  court  may  not  punish  a  litigant  for 
contempt  by  striking  his  pleas  from  the  file  and  entering  judgment  against 
him,^  nor  punish  summarily  without  notice  or  hearing  for  a  contempt  com- 
mitted out  of  the  view  and  hearing  of  the  court/ 


Life,  liberty  and  property.  Although  the  phrase  "due  process  of  law" 
has  been  a  more  frequent  subject  of  judicial  consideration,  the  courts  have 
also  declared  what  rights  and  privileges  are  included  in  the  words  "life,  lib- 
erty and  property."  The  commitment  of  dependent  minors  to  state  insti- 
tutions after  judicial  determination  of  dependency  is  not  a  viola- 
tion of  this  section  although  it  deprives  unoffending  persons  of  their  liberty.^ 
The  right  of  a  convict  to  his  liberty  under  parole  is  within  the  protection  of 
this  section  and  he  may  not  be  deprived  of  it  without  due  process  of  law."  In 
an  opinion  of  the  Attorney  General,  it  is  held  that  a  judicial  determination  is 
necessary  for  the  detention  of  persons  non  compos  mentis,  and  that  a  statute 
authorizing  the  holding  of  persons  for  mental  disturbance  or  in  the  incipient 
stages  of  insanity  for  treatment  or  extended  observation  would  probably  be 
unconstitutional.^  The  right  of  a  peaceful  citizen  of  a  loyal  state  to  personal 
liberty,  except  when  restrained  upon  a  charge  of  crime  and  for  the  purpose 
of  judicial  investigation,  or  under  the  command  of  law  pronounced  by  a  ju- 
dicial tribunal,  may  not  be  taken  away  by  an  unauthorized  proclamation  of 
the  President  of  the  United  States,  even  when  a  state  of  rebellion  exists  in 
other  sections  of  the  United  States.^  But  the  term  "liberty"  means  not  only 
freedom  from  servitude  and  restraint,  but  is  deemed  to  embrace  the  right  of 
every  man  to  be  free  in  the  use  of  his  powers  and  faculties,  and  to  adopt  and 
pursue  such  vocation  or  calling  as  he  may  choose,  subject  only  to  the  re- 
straints necessary  for  the  common  good.*  It  includes,  as  well,  the  right  to 
contract,  and,  in  fact,  many  of  the  privileges  known  as  property  rights. 
Property  is  not  the  physical  thing  which  may  be  the  subject  of  ownership, 
but  is  the  right  of  dominion,  possession  and  power  of  disposition  which  may 
be  acquired  over  it,  and  the  right  of  property  is  the  right  not  only  to  possess 
and  enjoy  it,  but  also  to  acquire  it  in  any  lawful  mode  or  by  following  any 
lawful  industrial  pursuit  which  the  citizen  in  the  exercise  of  the  liberty 
guaranteed  may  choose  to  adopt." 

The  right  to  acquire  property  includes  the  right  to  make  and  enforce 
contracts  and  a  statute  which  denies  workmen,  or  lists  of  workmen,  from  free 
employment  agencies  to  employers  whose  employees  are  on  strike,  is  a  depri- 
vation of  the  right  to  contract."  The  right  to  subdivide  realty  or  leave  it 
unsubdivided  is  a  property  right  which  may  not  be  taken  away  by  a  city 
under  legislative  authority.^^  It  has  been  held  by  the  Illinois  Supreme  Court 
that  it  is  a  deprivation  of  property  to  prohibit  the  employment  of  aliens  on 
work  to  be  paid  from  funds  raised  by  taxation,  and  for  a  local  improvement 
contract  to  specify  an  eight-hour  day  and  citizen  labor,"  but  a  statute  pro- 
viding an  eight-hour  day  for  work  done  for  a  state  and  its  municipalities 
was  sustained  by  the  United  States  Supreme  Court."  Rights  of  defense  aris- 
ing from  the  complete  running  of  statutes  of  limitations,  are  property  within 
the  protection  of  this  provision.^'  An  acknowledgment  improperly  taken  be- 
fore an  officer  of  the  corporation  which  is  the  grantee  or  mortgagee  in  the  in- 


3  Walter   Cabinet   Co.   v   Russell,    250   111.    416    (1911). 

*Hohenaclel    v    Steele.    237    111.    229     (1908). 

s  County    of    McLean    v    Humphreys.    104    111.    378    (1882). 

"People  V   Strassheim.   242   111.   359    (1909). 

■^Report    Attorney    General    1908,    p.    630. 

« Johnson   v   Jones.   44   111.    142    (1867). 

» People  v   Steele.    231    111.   340    (1907). 
wRraceville  Coal  Co.   v  People.   147   111.   66    (1893). 
"Mathews    v    People.    202    111.    389     (1903). 
"City   of   Chicago    v   Wells.    236    111.    129    (1908). 
i«McChesney  v  People,   200   111.   146    (1902);   City  of  Chicapro   v  Hulbert.   205 


^*Atkin    V   Kansas,    191    U.    S.    207,    (1903) 
f'-Fish   V   Farwell.    160    111.    236    (1898). 


Article  2,  Section  2  21 

strument,  may  be  validated  to  effectuate  the  intention  of  the  parties  thereto, 
but  not  if  vested  rights  of  third  persons  have  intervened/"  Nor  can  a  law  oper- 
ate retroactively  so  as  to  affect  payments  of  usury  which,  according  to  the 
law  when  made,  became  payments  on  the  principal  since  the  right  to  so  apply 
them  vested  at  the  time  of  payment."  An  invalid  tax  sale  may  not  be  vali- 
dated by  act  of  legislature,  because  the  right  of  defense  to  such  sale  becomes 
a  vested  right.^^ 

But  a  person  cannot  have  a  vested  right  in  a  particular  remedy  or 
procedure.  The  legislature  may  provide  that  evidence  of  certain  facts  shall 
create  a  legal  presumption,  as  in  the  case  of  giving  j)rima  facie  weight 
to  official  certificates,'*  or  providing  that  the  failure  of  a  corporation  to 
make  a  required  return  to  the  S-ecretary  of  State  shall  constitute  prima 
facie  evidence  of  non-user.-'^  But  in  such  cases  the  facts  which  are  given 
a  probative  value  must  have  a  fair  and  natural  relation  to  the  ultimate 
fact.-^  A  statute  requiring  carriers  to  weigh  grain  for  shipment,  and  in 
the  event  of  failure  to  do  so,  making  the  sworn  statement  of  the  shipper 
conclusive  proof  of  such  weight,  is  void.--  Acts  requiring  the  bringing  of 
suit  on  claims  within  a  fixed  period  do  not  take  away  property  rights  so 
long  as  they  afford  a  reasonable  opportunity  to  bring  suit.--^  The  right  to 
have  a  statutory  cause  reviewed  by  appeal  or  writ  of  error  is  not  a  con- 
stitutional privilege.-* 

But  it  has  been  held  that  a  person  cannot,  within  the  meaning  of  this 
section,  have  a  property  right  to  public  office,-^  such  as  that  of  executor^" 
or  county  treasurer;-^  or  to  sell  or  give  away  a  street  car  transfer  issued  for 
continuous  trip.-**  Gambling  implements,  after  the  possession  of  them  has  been 
made  unlawful,  are  not  lawful  subjects  of  property,  but  may  be  destroyed 
without  violating  this  provision,^"  nor  is  there  a  property  right  in  the  contin- 
ued use  in  dry  territory  of  dram  shop  fixtures  which  are  not  suitable  for  any 
other  business.^^  While  the  right  to  engage  in  usual  lawful  occupations  is  a 
property  right,  the  operation  of  a  street  railroad  is  a  special  privilege  or  fran- 
chise which  does  not  belong  to  individuals  by  common  right.^^  Although 
game  and  fish  laws  are  frequently  referred  to  as  police  measures,  the 
courts  have  said  that  the  title  to  all  game  and  fish  is  in  the  state,  and 
that  the  taking  of  game  and  fish  is  not  a  matter  of  individual  right  but  a 
permit  or  license  granted  in  such  a  manner  as  to  best  conserve  the  com- 
mon interest.^^  The  right  to  use  or  sell  special  knowledge,  training  or  ex- 
perience is  undoubtedly  a  liberty  or  property  right,  but  compelling  a  per- 
son with  special  knowledge  to  give  expert  testimony  without  compensa- 
tion other  than  the  fees  fixed  by  law  does  not  deprive  him  of  that  property.^^ 

Subdivisions  of  the  state  like  counties  while  acting  in  their  public 
or  governmental  capacity,  are  agents  of  the  state  and  their  property  ac- 
quired for  this  purpose  is  not  protected  against  a  taking  on  the  part  of 
the  state.^*  Municipalities  are  entrusted  as  agencies  of  the  state,  with  the 
duty  of  preserving   peace   and   order   and   a  statute   imposing   liability   on 


wsteser  v  Traveling  Men's  Bldg.  &  Loan  Ass'n.,   208  111.    236    (1904). 
"Hunter    v    Hatch.    45    111.    178     (1867). 
i«  Conway   v  Cable.   37   111.   82    (1865). 

19  Chicago  Terminal  Transfer  R.  R.  Co.  v  City  of  Chicago,  217  111.  343   (1905). 
2«  People   V   Rose.    207    111.    352    (1904). 
^  Meadowcroft   v   People.    163    111.    56    (1896). 

23  Shellaharger  Elevator  Co.  v  I.  C.  R.  R.  Co..   278  111.   333    (1917). 
23McCogg   V   Heacock.    42    111.   153    (1866). 
^People  v  Cohen,   219  111.  200    (1906). 

25  People   V   Kipley.    171    111.    44.    (1898);    People    v   City   of   Chicago,    242    111. 
561    (1909);   City  of  Aurora  v  Schoeberlein,   230  111.   496    (1907). 
2<'In   re    petition    of    Mulford.    217    111.    242    (1905). 
27  Donahue  v  County  of  Will,   100   111.   94    (1881). 
2sCity   of   Chicago   v  Openheim.    229    111.    313    (1907). 
29  Frost   V    People.    193    111.    635    (1901). 
3'»  People   V   McBride.    234   111.    146    (1908). 
«i  Goddard   v   C.   &  N.   W.    Ry.   Co.,    202    111.   362    (1903). 

32  People   V   Bridge?.   142   111.   30    (1892);   Magner  v   Peo;  le.    97   111.    320    (1881). 

33  Dixon   V   People.    168   111.   179    (1897). 

3^  Dunne   v   County   of  Rock   Island,   283    111.   628    (1918). 


22  Article  2,  Section  2 

municipalities  for  damage   done  by  mobs   is   based   on  the   failure   to   per- 
form this  delegated  duty.'" 

Contract  rights  are  specifically  protected  by  section  14  of  this  article, 
and  the  taking  of  such  rights  is  discussed  under  that  provision. 


Due  process  of  law  as  a  procedural  requirement.  As  a  limitation  on 
the  method  by  which  an  individual  may  be  deprived  of  his  rights  and 
liberties,  due  process  of  law  embodies  certain  fundamental  principles. 
Some  of  the  more  important  of  these,  such  as  the  safeguards  protecting 
persons  accused  of  crime  are  the  subject  of  special  provision  in  other  sec- 
tions of  the  bill  of  rights  and  are  considered  in  connection  with  the 
appropriate  sections.  Due  process  implies  that  the  rights  of  life,  liberty, 
and  property  of  each  individual  shall  be  determined  by  general  rules 
which  shall  apply  to  all  who  have  similar  rights.  Thus,  the  General 
Assembly  may  not  limit  an  appeal  by  one  party  to  questions  of  law  only 
while  giving  to  the  other  party  to  a  suit  a  right  to  a  review  of  all  matters 
of  law  and  fact.'''  Nor  may  a  law  require  personal  representatives  holding 
title  or  power  of  sale  under  wills  to  register  lands  of  their  decedents, 
since  this  would  affect  unequally  persons  taking  and  holding  real  estate.^' 
This  requirement  of  generality  of  laws  and  the  matter  of  classification  for 
purposes  of  legislation,  become  of  the  greatest  importance  in  testing  the 
substance  of  statutory  enactments  under  the  developed  construction  of  due 
due  process.  In  fact,  the  objection  to  a  majority  of  the  statutes  declared 
invalid  under  this  clause  has  been  that  they,  in  the  opinion  of  the  court, 
single  out  certain  persons  or  classes  and  impose  upon  them  burdens  or 
restrictions  not  imposed  on  others  in  like  conditions.  A  statement  of 
these  cases  follows  later  in  this  note.  (See  discussion  subsequent  sub-head- 
ing "Due  process  as  a  test  of  the  substance  of  legislation.") 

A  fundamental  element  of  due  process  is  the  possession  of  jurisdiction 
by  the  tribunal  or  board  passing  upon  rights  of  life,  liberty  and  property. 
A  foreign  corjioration  not  engaged  in  business  or  owning  property  in  this 
state,  is  not  amenable  to  process  from  Illinois  courts  and  since  a  court  here 
has  no  jurisdiction,  the  rendition  of  a  judgment  is  not  due  process  of  law.'* 
Equally  fundamental  is  the  principle  that  a  litigant  shall  not  be  the  judge 
in  his  own  case.  The  appointment  of  a  commissioner,  who  is  himself  a  land 
owner  in  a  drainage  district,  to  act  in  the  assessment  of  benefits  upon  land  in 
that  district  requires  land  owners  to  submit  their  controversy  to  a  tribunal 
of  which  their  adversary  is  a  member  and  is  violative  of  this  principle.^® 

The  conception  of  due  process  of  law  implies  notice  with  an  opportunity 
to  appear  and  a  hearing  or  inquiry  with  a  right  to  be  heard.*'  But  in  judging 
what  constitutes  due  process,  regard  must  be  had  to  the  nature  of  the  pro- 
ceeding. Thus,  the  same  kind  of  notice  is  not  required  in  a  special  assess- 
ment proceeding  for  local  improvements  as  in  a  suit  at  law  for  a  personal 
judgment.^^  Constructive  service  of  process  for  the  rendition  of  a  personal 
judgment  against  a  resident  defendant  has  been  held  to  be  due  process."  And 
in  a  tax  levy  by  a  sanitary  district,  it  was  held  that  the  requirement  of  publi- 
cation might  be  dispensed  with  by  a  curative  act  since  due  process  does  not 
require  notice  of  each  step  of  the  proceeding,  and  application  of  the  collector 
for  judgment  would  afford  notice  before  the  tax  became  fixed  as  an  irrevoca- 
ble charge  on  property.^'*  In  fact,  in  a  proceeding  for  a  contempt  committed  in 
the  presence  of  the  court,  due  process,  from  the  nature  of  the  offense,  does 


35Sturges   V   City  of  Chicago,    237    111.    46    (1908). 

3"  Green  v  Red  Cross  Medical  Service  Co..   232  111.  616   (1908). 

37  Anderson   v    Shepard,    285    111.    544    (1918). 

3SBOOZ   V   Texas   &   Pacific   Ry.   Co..    250    111.    376    (1911). 

39  Commissioners   v   Smith.    233    111.    417    (1908), 

.,-,0  '/i^n^^'^"^^"  ^   People.    210   111.   552    (1904);    Gage   v   City   of    Chicago,    225    HI. 
<j18(1"07). 

"McChesney   v   City   of   Chicago.    226    111.    238    (1907) 

*2  Nelson  v   C.    B.   &  Q.   R.   R.   Co..    225    111.    197    (1907) 

«  People  V  Arnold  Bros..  282  111.   305    (1918). 


Article  2,  Section  2  23 

not  require  notice  and  a  hearing.*^  It  has  been  held  that  because  of  the  char- 
acter of  gambling  implements  seized  under  a  search  warrant  and  their  con- 
nection with  criminal  offenses,  personal  notice  to  the  owner  is  not  required, 
notice  to  the  person  in  possession  being  deemed  sufficient/^  The  right  to  pre- 
sent evidence  in  a  civil  suit  may  not  be  taken  away  even  from  a  violator  of 
the  law  nor  can  evidence  not  conclusive  in  itself  be  made  so  by  legislative 
fiat/^  There  may  be,  in  fact,  certain  situations  which  from  necessity  require 
summary  action  in  the  interest  of  the  general  welfare,  in  which  the  right  to 
notice  and  a  hearing  preceding  the  taking  and  destruction  of  property  is  dis- 
pensed with.  In  an  emergency  to  prevent  the  spread  of  disease,  infected  ar- 
ticles or  animals  may  be  ordered  destroyed  by  legislative  authority  without 
notice  or  hearing."  But  the  authority  vested  in  boards  or  officials  to  so  pro- 
ceed depends  on  the  jurisdictional  fact  as  to  the  actual  existence  of  the  nui- 
sance or  dangerous  condition.^  This  leaves  open  a  subsequent  right  to  a  ju- 
dicial inquiry  with  a  hearing  as  to  the  validity  of  the  action.  Thus,  in  an 
action  of  trespass  against  the  board  of  live  stock  commissioners  for  destroy- 
ing horses  claimed  to  have  been  diseased,  the  fact  that  they  were  diseased 
constitutes  a  justification,  but  not  the  fact  that  the  board  after  a  hearing  de- 
termined that  they  were  diseased.*® 

Due  process  does  not  necessarily  mean  judicial  process,  and  the  right  to 
a  hearing  does  not  always  imply  a  trial  by  court.  Sections  5  and  9  of  this  ar- 
ticle make  specific  provision  for  certain  kinds  of  hearings  for  certain  pro- 
ceedings, but  for  the  determination  of  some  other  rights,  the  legislature  may 
provide  for  hearings  before  administrative  boards.  In  a  general  way,  it  may 
be  said  that  the  kind  of  hearing  and  the  character  of  the  tribunal  depend  on 
the  nature  of  the  case.  Thus,  the  tax  assessor  and  county  clerk  may  not  be 
authorized  to  assess  penalties  on  land  owners  in  a  drainage  district  for  fail- 
ure to  clean  streams  on  their  property.^"'  An  ordinance  cannot  provide  in  the 
case  of  stock  running  at  large  for  the  assessment  of  damages  by  three  disin- 
terested men.^*  On  the  other  hand,  the  state  board  of  examiners  may  after 
notice  and  a  hearing,  revoke  the  license  of  an  architect  for  cause,^-  and  the 
state  board  of  health  may  revoke  a  license  to  practice  medicine  for  adver- 
tising under  a  false  name."  The  public  utilities  commission  may  be  vested 
with  power  to  conduct  hearings  on  the  question  as  to  reasonableness  of  rates 
and  the  determination  by  the  commission  constitutes  due  process  of  law.^* 

As  a  general  rule,  a  person  may  not  be  deprived  of  life  or  freedom  from 
physical  restraint  except  by  a  judicial  hearing,  but  it  has  been  held  that  the 
qualified  liberty  of  a  convicted  person  on  parole  may  be  taken  after  a  hearing 
by  the  parole  board,"^  and  in  the  judgment  of  the  Attorney  General,  he 
must  be  given  notice  of  the  charge  against  him  and  the  precise  time  and 
place  of  the  hearing  and  have  an  opportunity  to  prepare  and  present  his 
defense,  and  probably,  to  be  represented  by  counsel.^  The  question  as  to 
the  nature  of  the  case  and  the  character  of  the  tribunal  involve  also  the  prin- 
ciple of  the  distribution  of  governmental  powers,  for  a  discussion  of  which 
see  article   3. 


Due  process  as  a  test  of  the  substance  of  legislation.  As  has  been 
stated  earlier  in  this  note,  the  construction  of  this  section  has  been  ex- 
tended to  embody  a  test  of  the  reasonableness  of  legislative   interference 


"Hohenadel    v    Steele.    237    111.    229    (1908). 

^sGlennon    v    Britton,    155    111.    232    (1895). 

"«  Shellabarg^er   Elevator   Co.    v   I.   C.   R.   R.    Co.,    278    111.    333    (1917). 

"Durand   v   Dyson.    271   111.    382    (1916). 

^''Siners  v  City  of  Joliet.   237   111.   300    (1908). 

*9  Pearson    v    Zehr,    138    111.    48     (1891). 

s»C.  C.   C.  &   St.   L.   Ry.  Co.   V  People.    212   111.   638    (1904). 

51  Bullock    v    Geomble,    45    111.    218     (1867). 

52Klafter    v    Board    of    Examiners.    259    111.    15    (1913). 

53T>enr.le   v    Apfelbaum.    251    111.    18    (1911). 

"  Public  Utilities  Commission  v  C.  &  W.  T,  Ry.  Co.,  275  111.  555  (1916). 

^People   v   Strassheim.    242    111.    359    (1909). 

5«  Report  Attorney   General   1912.   p.  1126. 


24  Article  2,  Section  2 

with  individual  rights.  The  General  Assembly  may  enact  regulations  de- 
signed to  secure  and  guard  the  health,  morals,  safety  and  general  welfare 
of  society.  These  regulations,  enacted  in  the  exercise  of  the  police  power 
operate  by  the  suppression  of  the  liberties  of  the  individual  and  the  re- 
striction of  his  use  and  enjoyment  of  property.  This  section  under  its  ex- 
tended construction  as  a  test  of  reasonableness  and  appropriateness  to  be 
applied  by  the  court,  is  the  dividing  line  between  legislative  power  and 
private  right. 


Nature  of  police  regulations.  It  is  recognized  that  the  state  under  the 
police  power  may  exercise  a  wide  degree  of  control  over  business  affected 
with  a  public  interest,  such  as  common  carriers  and  railroad,"  banking,^^ 
warehousemen  and  grain  elevators,"'''  public  utility  companies,®"  insurance,*'^ 
and  places  of  amusement,"-  but  not  a  public  golf  course."^ 

For  the  preservation  of  the  general  health,  statutes  and  ordinances  have 
been  sustained  licensing  and  restricting  the  sale  of  cigarettes;"*  requiring 
the  pasteurization  of  milk;""  requiring  the  providing  of  washrooms  for 
workmen  in  businesses  where  they  become  covered  with  grease,  smoke, 
grime  and  perspiration;""  prohibiting  the  sale  of  boric  acid  in  preserva- 
tives;"^ limiting  the  hours  of  labor  for  women  in  certain  kinds  of  employ- 
ment;"^ authorizing  the  destruction  of  infected  cattle,"^  and  of  buildings 
impregnated  with  small  pox  germs;'"  and  regulating  the  use  and  prohibiting 
the  sale  of  intoxicating  liquors." 

The  public  morals  are  a  proper  subject  for  police  legislation  and  the 
court  has  held  valid  measures  prohibiting  an  exhibition  or  business  which 
is  against  decency  and  good  morals,"  suppressing  gambling  and  grain  op- 
tion contracts,'^  and  forbidding  the  marriage  of  divorced  persons  within  one 
year,"  but  the  court  has  held  otherwise  as  to  an  ordinance  to  prohibit  public 
dancing  in  restaurants^"'  and  one  prohibiting  all  public  dances  and  open 
air  picnics.'" 

The  state  may  to  prevent  deceit  and  fraud,  regulate  the  business  of 
dealing  in  small  produce  from  farms  on  commission;"  prohibit  an  arrange- 
ment between  owners  of  theaters  and  ticket  brokers  to  sell  tickets  at  an 
advanced  price  and  share  the  profits;'^  require  the  labelling  of  a  harmless 
compound  intended  to  resemble  an  article  of  commerce;'"  prohibit  the 
coloring  of  oleomargarine  to  resemble  butter;""  and  require  the  capacity  of 


^'Chicag-o   Union   Traction   Co.   v   City   of   Chicago,    199    111.   484    (1902);   C.   C. 
C.   &   St.    L.    Ry.   Co.,    V   People.    17.^   111.    3.^9    (1898). 

"«  Meadowcroft    v    People.    163    111.    56    (1896). 

5«Munn   V   People,    69    111.    SO    (1873). 

""City  of  Chicago  v  O'Connell,  278  111.  591    (1917);    (recently  affirmed  by  the 
United   States   Supreme   Court). 

«i  People  V  American   Life   Ins.   Co..    267   111.    504    (1915). 

"-People    V    Thompson,    283    111.    87    (1918). 

"3  Condon   v   Village   of   Forest   Park,    278   111.    218    (1917). 

"^  Gundling  v   City   of  Chicago,    176    111.    340    (1898). 

"•''Koy  V  City  of  Chicago,   263   111.   122    (1914). 

""People   V    Solomon,    265    111.    28    (1914) 

"■'People    V   Price,    257    111.    587    (1913). 
Ill     57?^  0^1^21*^    ^^'    ^    Wayman,    244    111.    509     (1910);    People    v    Elerding,    254 

""Durand   v   Dyson,    271    111.    382    (1916). 

™  Sings  V  City  of  Joliet,    237   111.   300    (1908). 
Ml     9  J%'"f^i^7'^^  X  V;   ^   ^-    ^-   ^-   ^«-    2-'>4    111.    624    (1912);    People   v   Jones.    280 
tIu!1     970   Tn    I^o^l^.."^^^*""-    ^"^^   ^"-    ^^^    (1«10):   but   see   Town   of   Cortland   v 
^      7?!^'-.  ^/Uu-^"^    (1916):   Haskell   v   Howard.    269   111.    550    (1915). 

^  City  of  Chicago  v  Shaynin,   258  111.   69    (1913). 

™  Booth    V    People,     186     111.     43     (1900) 

'^Hobbs   V  Hobbs.    279   111.   163    (1917) 

-aSi^    °^   9^1^^^".^^   Drake   Hotel    Co..'    274    111.    408    (1916). 

'Village   of  De.s   Plaines   v   Poyer.    123    111.    348    (1888). 

"Lasher  v  People.  183  111.  226    (1899) 

^■t  People  V   Thompson.    283    111     87    (1918) 

^9  People  v  William  Henninsr  Co.,  260  111.  554   (1913). 

8"  People  V  Freeman.   242  111.   373    (1909) 


Article  2,  Section  2  25 

milk  and  cream  bottles  to  be  permanently  stamped  thereon.^^  Under  the 
police  power,  the  General  Assembly  may  regulate  or  prohibit  the  sale  of 
deadly  weapons,*^  fix  speed  limits  for  automobiles,*^'  and  authorize  munici- 
palities to  create  fire  limits,^^  to  guard  the  safety  of  the  public. 

Other  measures  designed  to  promote  the  general  welfare  of  society, 
the  validity  of  which  have  been  sustained  by  the  courts,  have  prescribed 
the  qualifications  for  persons  engaging  in  businesses  and  occupations  de- 
manding special  knowledge,  experience  and  skill  such  as  medicine,^^  dental 
surgery,**"  plumbing,"*'  barbering,'*'*  and  coal  mining,^"  but  not  the  practice  of 
optometry  when  it  was  made  to  include  the  sale  of  glasses  after  an  ex- 
amination or  fitting  in  which  the  purchaser  himself  tested  the  lenses  and 
made  a  selection.-*'  A  law  prescribing  qualifications  for  horseshoers  and 
regulating  the  business  of  horseshoeing  was  declared  not  to  be  a  proper 
police  measure  by  the  court,  but  the  measure  was  objectionable  because  of 
an  improper  classification  on  the  basis  of  population." 

The  General  Assembly  may  require  corporations  to  keep  at  their  prin- 
cipal office  correct  books  of  account  and  make  such  books  accessible  to  stock- 
holders,**'  give  cities  and  villages  the  power  to  prescribe  the  size  of  loaves 
and  quality  of  bread  sold,^^  make  unlawful  the  possession  of  a  motor  bicycle 
or  motor  vehicle  with  the  manufacturer's  numbers  defaced,  or  changed,^' 
regulate  by  license  private  employment  bureaus,®'  and  impose  the  support 
of  paupers  on  counties  or  towns.®^ 

Municipalities  may  be  authorized  to  regulate  the  location  of  businesses 
which  may  be  offensive  or  dangerous  in  certain  localities.  Thus,  livery 
stables®'  and  public  garages"'  may  be  prohibited  in  strictly  residential  dis- 
tricts. 


Legality  of  purpose  and  appropriateness  of  a  particular  measure  to 
effect  that  purpose.  The  police  power  while  paramount  to  rights  of  the 
individual,  is  itself  restrained  by  the  fundamental  principles  of  justice  con- 
noted by  the  phrase,  due  process  of  law.  This  implies  action  not  merely 
arbitrary  but  having  a  substantial  relation  to  the  health,  safety,  morals  or 
general  welfare  of  the  public.  Not  only  must  it  have  this  relation,  but  it 
must  appear  to  the  court  to  be  an  appropriate  measure  to  secure  the  result 
sought.''®  The  purpose  of  a  statute  prohibiting  structures  for  advertising 
purposes  within  five  hundred  feet  of  a  park  or  boulevard  is  purely  aesthetic 
and  is  not  within  the  purview  of  the  police  power.^  A  reasonable  regulation 
however,  as  to  material  and  dimensions  of  bill  boards  to  safeguard  life 
and  property  is  a  valid  exercise  of  police  power.-  An  ordinance  was  sus- 
tained which  prohibited  bill  boards  in  residential  blocks  except  upon  the 
consent  of  the  owners  of  a  majority  of  the  property  fronting  that  block. 
This  regulation  was  held  not  unreasonable  since  bill  boards  might  increase 
the    danger    from    fire   and    afford    protection    to    criminals    and    disorderly 


81  City  of  Chicago  v  Bowman  Dairy  Co..   234   111.   294    (1908). 

8-Biffer  v  City  of  Chicago,   278   111.   562    (1917). 

8=f  Christy   v  Elliott.    216   111.    31    (1905). 

8*  King   v    Davenport.    98    111.    305    (1881). 

8=  Williams   v   People,    121    111.    84    (1887). 

8«  Kettles   v   People,    221    111.    221    (1906). 

87  Douglas   V   People.    225    111.    536    (1907). 

8s  People    v    Logan,    284    111.    83     (1918). 

8»  People   v   Evans.    247    111.    547    (1910). 

90  People  v  Griffith.   280  111.   18    (1917). 

91  Bessette  v  People,   193  111.   334    (1901). 

»-Venner  v   Chicago   City   Ry.   Co..    246    111.    170    (1910). 
9=5  City    of    Chicago    v    Schmidinger,    243    111.    167     (1909). 
w  People  v  Fernow,   286   111.   627   (1919). 
93  Price    v   People,    193    111.    114    (1901). 
9"  Tovirn  of   Fox   v  Town   of   Kendall.    97   111.   72    (1880), 
97  City   of  Chicagro   v   Stratton,    162    111.    494    (1896). 
sspeoplo  V  Ericsson,    263    111.    368    (1914). 
99  People    v    Steele,    231    111.    340    (1907). 

1  Halle:.'  Sign  Works  v  Physical  Culture  Training  School,  249  111.  436   (1911). 

2  City   of   Chicago   v   Gunning  System,    214   111.   628    (1905). 


26  Article  2,  Section  2 

persons.^  Municipalities  may  not  prohibit  retail  stores  in  residential  dis- 
tricts since  there  is  nothing  inherently  dangerous  to  the  public  health  or 
safety  in  conducting  a  retail  store.*  It  was  held  by  the  Illinois  Supreme 
Court  that  a  measure  to  restrict  the  use  of  the  national  flag  for  advertising 
purposes  was  not  proper  police  legislation/  but  this  view  was  not  shared 
by  the  United  States  Supreme  Court  in  a  later  decision."  The  licensing  of 
itinerant  merchants  by  municipalities  is  a  proper  police  measure,  but  not  a 
prohibition  of  such  business  by  the  requirement  of  a  prohibitive  license  fee.'' 
Nor  can  the  purchase  of  receptacles  bearing  a  registered  trade  mark  without 
the  written  consent  of  the  original  owner,  be  prohibited.^  It  has  been  held 
by  the  Illinois  Supreme  Court  that  the  right  of  mine  owners  and  em- 
ployees to  contract  as  to  wages  and  method  of  ascertaining  them  cannot  be 
abridged  by  a  law  requiring  the  weighing  of  coal  at  mines  and  providing 
for  the  payment  of  wages  on  the  basis  of  such  weight,®  but  similar  legisla- 
tion has  been  sustained  in  the  United  States  Supreme  Court.^"  The  General 
Assembly,  in  the  opinion  of  the  court,  may  not  forbid  an  employee  to  pay 
for  goods  purchased  by  working  out  the  debt,"  nor  make  it  a  criminal  offense 
for  an  employer  to  prevent  his  employees  from  joining  unions  or  to  discharge 
them  because  of  connection  with  unions.'^  The  prohibition  of  the  sale  of 
secondhand  mattresses  is  unreasonable  inasmuch  as  the  use  of  such  articles 
may  be  made  safe  by  sterilization."^^  And  while  it  would  be  proper  for  a 
municipality  to  require  milk  to  be  cooled  and  kept  cool,  a  regulation  which 
required  a  carrier  to  keep  milk  below  a  certain  temperature  while  trans- 
porting it  and  at  the  same  time  made  the  taking  of  the  temperature  impractic- 
able by  requiring  cans  to  be  sealed,  cannot  be  sustained.'^  A  law  limiting  the 
employment  of  women  in  certain  occupations  to  eight  hours  a  day  was  held 
invalid,  one  objection  being  that  it  was  a  purely  arbitrary  restriction  upon  the 
fundamental  right  of  the  citizen  to  control  her  own  time  or  faculties." 
But  in  two  later  cases,  ten  hour  laws  for  women  wei-e  sustained,  the  in- 
fringement on  the  right  to  contract  and  labor  being  justified  by  the  likeli- 
hood that  too  long  periods  of  labor  would  affect  women  injuriously  and 
produce  weak  and  sickly  children.*" 

To  what  extent  regulation  under  the  police  power  may  interfere  with 
the  individual  liberty  depends  on  the  character  of  the  business  and  the 
degree  of  public  interest  therein,  as  well  as  the  nature  of  the  regulation. 
In  the  case  of  warehousemen,  carriers  and  other  public  utilities  the  state 
may  so  far  control  their  operation  as  to  prescribe  maximum  rates  for  ser- 
vice," so  long  as  the  rates  fixed  are  reasonable  and  do  not  amount  to  a 
deprivation  of  property,'*'  or  may  require  uniformity  of  insurance  rates 
between  insurants  of  the  same  class.'® 

A  police  measure  will  not  necessarily  be  unreasonable  because  its  effect 
is  to  restrain  the  private  use  of  property  so  as  to  result  in  a  property  loss 
to  the  owner.  And,  as  has  been  noted  above,  property  may  even  be  de- 
stroyed altogether  when  its  continued  existence  constitutes  a  menace  to 
the  public  welfare.     Thus,   a   statute   prohibiting  the  sale   of  intoxicating 


«  Thomas  Cusack  Co.   v  City  of   Chicae:o.   267   111.   344    (1915). 

*  People  V   City   of   Chicago,    261    111.    16    (1913). 

^Ruhstrat   v   People,   185    111.    133    (1900). 

« Halter  v  Nebraska.   205  U.   S.  34    (1907). 

7  City  of  Carrolton  v  Bazzette,   159   111.   284    (1896). 

sHorwich  v  Walker-Gordon  Lab.  Co.,  205  111.  497   (1903). 

»  Ramsey  v  People,  142  III.  380  (1892);  Harding  v  People,  160  111.  459   (1896). 
w  Rail  and  River  Coal  Co.  v  Taple.  236  U.   S.  338    (1915);  McLean  v  Arkan- 
sas.   211    U.    S.    539    (1909). 

"Kelleyville  Coal  Co.    v  Plarrler,    207   111.    624    (1904);   Frorer  v   People.    141 
111.   171    (1892);   but  see  Knoxville  Iron  Co.  v  Harbison,   183   U.   S.   13    (1901). 
"Gillespie   v   People.    188    111.    176    (1900). 
13  People   V  Weiner,   271    111.    74    (1915). 

"City    of   Chicago    v    C.    &    N.    W.    Ry.    Co..    275    111.    30    (1916). 
'5  Ritchie   v  People.   155   111.   98    (1895). 
^*  Ritchie  &  Co.  V  Wayman,  244   111.   509    (1910);   People  v  Elerding.    254   111. 

"Munn  v  People,  69  111.  80   (1873). 

IS  Chicago  Union   Traction  Co.  v  City  of  Chicago.   199   111.    484    (1902). 

"People  v  American  Life  Ins.  Co..   267  111.   504    (1915). 


Article  2,  Section  2  27 

liquor  may  wholly  deprive  a  saloonkeeper  of  the  use  of  bar  fixtures  not 
adapted  to  other  businesses,^'^  or  an  ordinance  may,  by  requiring  milk  and 
cream  bottles  to  have  their  capacity  permanently  indicated  thereon,  destroy 
the  use  and  value  of  bottles  not  so  marked.'^  In  such  cases  there  is  not  a 
taking  or  appropriation  to  public  use  for  which  compensation  must  be  made. 
But  the  annexation  by  a  city  of  a  narrow  strip  of  territory  when  it  destroys 
the  use  of  a  turnpike  company's  property  as  a  toll  road,  is  an  act  of  eminent 
domain.^  When  under  the  police  power,  the  elevation  of  railroad  tracks  to 
eliminate  grade  crossings  is  required,  the  consequent  damage  to  private 
property  lying  alongside  is  a  taking  or  damaging  for  public  use  for  which 
compensation  must  be  made.-^ 


Generality  of  legislation.  The  requirement  of  generality  of  action  and 
uniformity  of  application  implied  by  the  expanded  construction  of  this  sec- 
tion restricts  the  arbitrary  singling  out  of  persons  or  groups  upon  whom 
the  burdens  and  restrictions  of  a  police  measure  will  fall.  Classification  for 
the  purpose  of  regulation  is  not  improper  so  long  as  there  is  in  the  class 
created  a  natural  distinction  which  makes  it  a  proper  subject  for  the  regu- 
lation in  view  of  the  purpose  and  effect  of  the  particular  measure.-'  It  has 
been  held  by  the  Illinois  Supreme  Court  that  an  act  which  prohibited  per- 
sons engaged  in  a  mining  or  manufacturing  business  from  owning  or 
operating  a  store  for  the  furnishing  of  groceries,  clothing  and  supplies, 
creates  a  class  which  is  unnatural  and  arbitrary  in  relation  to  the  prohibition 
imposed.-"  But  a  somewhat  similar  statute  applying  to  all  employers  was 
sustained  in  the  United  States  Supreme  Court.^  The  Supreme  Court  of 
Illinois  held  invalid  a  law  requiring  corporations  engaged  in  certain  busi- 
nesses to  pay  employees  weekly  on  the  ground  that  there  was  no  reason 
which  demanded  weekly  payments  of  wages  by  the  corporations  included 
which  did  not  apply  with  equal  force  to  many  other  kinds  of  businesses  not 
included."  But  a  New  York  statute  which  required  railroad  employees  to  be 
paid  semi-monthly  was  sustained  by  the  United  S>tates  Supreme  Court.'* 
In  the  opinion  of  the  Illinois  court  there  is  nothing  in  the  business  of 
coal-mining  which  differentiates  it  from  other  occupations,  so  as  to  permit 
the  General  Assembly  to  deprive  mine  operators  and  employees  of  the  right 
to  contract  without  restraint  as  to  wages  and  the  methods  of  determining 
them,-"  but  this  view  was  not  shared  by  the  United  States  Supreme  Court.^*^ 
An  ordinance  forbidding  persons  engaged  in  selling  dry  goods,  clothing, 
jewelry  and  drugs,  to  deal  in  meats,  fish,  butter,  cheese,  lard,  vegetables  or 
other  provisions  is  a  denial  of  a  property  right  to  a  particular  class  which 
is  not  justified  by  any  reason  relating  to  the  promotion  of  health,  safety  or 
welfare  of  the  public.^^  The  court  has  declared  discriminatory  a  licensing 
act  for  horeshoers  limited  to  those  in  cities  over  a  certain  population  ;^2 
a  statute,  which  fixed  a  prohibitive  license  fee  for  the  sale  of  patent  medi- 
cine by  itinerant  merchants  but  permitted  sales  by  resident  vendors;^  and 
a  law  which  required  barbershops  to  close  on   Sunday.^* 


=«  People   V    McBride,    234    111.    146    (1908). 

=1  City  of  Chicaero  v  Bowman  Dairy   Co..   2.S4   111.   294    (1908). 

^2  City  of  Belleville  v   St.   Clair  County  Turnpike   Co..    234   111.   428    (1908). 

=3  City   of   Chicagro   v   Jackson.    196    111.    496    (1902). 

-*  Bailey  v  People,  190  111.  28  (1901):  City  of  Chicago  v  Netcher.  183  111. 
104    (1899). 

25Frorer   v   People,    141    111.    171    (1892). 

^Knoxville    Iron   Co.   v   Harbison.    183    U.    S.   13    (1901). 

2fBraceville   Coal    Co.   v   People.    147    111.    66    (1893). 

'"Erie   Railroad   Co.   v   Williams.    233    U.    S.    68,^    (1914). 

^Millett  V  People,  117  111.  294   (1886):  Ramsey  v  People.  142  111    380   (1892). 

3«  McLean  v  Arkansas.  211  U.  S.  .539  (1909):  Rail  and  River  Coal  Co.  v 
Yaple,    236   U.   S.    338    (1915). 

31  City  of  Chicaao  v  Netcher.   183  111.  104    (1899). 

•■'2  Bessette   v   People.    193   111.   334    (1901). 

3'' People   V   Wilson.    249    111.    195    (1911). 

s^Eden   v   People,    161    111.    296    (1896). 


28  Article  2,  Section  2 

It  is  obvious  that  no  precise  standard  as  to  proper  classification  can  be 
made  to  govern  all  statutory  enactments.  It  is  equally  true  that  judicial 
opinion  may  vary  as  to  the  application  of  this  principle  to  a  particular 
situation  In  some  instances,  it  may  seem  difficult  to  reconcile  decisions 
of  the  same  court  as  to  different  situations.  The  court  held  invalid  a  law 
which  punished  employers  who  secured  non-resident  workmen  by  means 
of  misrepresentation  or  failure  to  disclose  labor  troubles  and  conditions.^^ 
Apparently  the  court  disapproves  the  classification  of  employers  of  workmen 
for  the  purpose  of  punishing  misrepresentation,  and  finds  no  reason  for  a 
different  measure  of  liability  for  such  action  in  the  case  of  resident  work- 
men and  those  brought  from  other  place^.  A  classification  may  be  a  natural 
one  for  some  purposes  but  for  the  purpose  of  the  act  creating  it,  a  wholly 
arbitrary  and  unreasonable  one.  It  is  essential  that  there  be  a  logical  and 
proper  relation  between  the  purpose  of  the  legislation  and  the  group  it 
affects.  In  most  cases  of  classification  for  this  purpose,  there  cannot  be  an 
exact  exclusion  or  inclusion  of  persons  or  things  and  frequently,  as  to  particu- 
lar persons  just  within  the  class  and  those  just  beyond  the  limits  of  it,  there 
may  be  no  substantial  difference.^***  As  was  pointed  out  by  the  court  in  sus- 
taining a  ten  hour  labor  law  for  women  in  hotels,  the  law  must  be  con- 
sidered as  to  hotels  generally  and  not  with  reference  to  the  character  of  the 
work  performed  and  under  the  conditions  existing  in  a  particular  instance.^' 
But  the  court  held  invalid  a  law  which  prohibited  the  use  of  emery  wheels 
or  belts  in  basement  rooms  for  the  reason  that  a  basement  room  might  be 
more  sanitary  than  a  room  so  used  above  the  surface.^"  And  a  law  which 
limited  the  giving  of  assignments  on  wages  and  salaries,  in  the  opinion  of 
the  court,  made  an  improper  classification  since  it  included  some  who  by 
reason  of  larger  remuneration  for  their  services,  did  not  need  protection 
against  loan  sharks.^^ 

The  question  of  classification  for  purposes  of  legislation  is  involved  in 
the  prohibition  in  section  22  of  article  4  against  granting  special  or  exclu- 
sive privileges,  immunities  or  franchises  and  a  further  discussion  may  be 
found  under  that  section.  (See  discussion  article  4,  section  22,  subheading, 
"Special  privileges  and   immunities.") 

Arbitrary  discretion.  The  General  Assembly  may  provide  for  the  de- 
termination of  certain  rights  by  administrative  boards  or  officials  and  the 
proceeding  will  constitute  due  process  of  law^"  so  long  as  the  act  itself  deter- 
mines a  policy  and  prescribes  a  method  for  its  application,  either  by  laying 
down  the  rules  or  by  requiring  the  administrative  agency  to  formulate  the 
rules  and  principles  which  are  to  govern  the  particular  instance  after  the 
facts  have  been  ascertained.  But  a  measure  which  vests  arbitrary  power  in 
an  administrative  agency  to  act  in  a  manner  affecting  the  rights  of  individ- 
uals, necessarily  is  subject  to  the  objection  that  it  is  not  general  or  uniform 
in  its  application.  The  court  has  held  unconstitutional  a  statute  which  made 
the  estates  of  insane  patients  liable  for  their  support  at  state  institutions  but 
at  the  same  time,  permitted  the  board  of  administration  to  release  or  modify 
any  claim  that  it  might  see  fit.*^  A  gas  safety  appliance  act  was  held  ob- 
jectionable for  the  same  reason.  It  exempted  from  the  requirements  of  the 
act,  buildings  which  received  less  than  a  certain  volume  of  gas  unless  the  con- 
ditions endangered  life  or  property.  In  that  case  the  city  fire  marshal  was 
vested  with  arbitrary  authority  to  require  such  buildings  to  be  equipped  in 
a  certain  manner  with  gas  safety  appliances  or  to  exempt  them,  as  he  saw 
fit."  So  an  act  amending  the  school  law  was  held  improper  since  it  left  to  the 

35Josma  V  Western  Steel  Car  &  Foundry  Co..  249  111.  508  (1911):  but  see 
Commonwealth   v   Libbey.    216    Mass.    356    (1914). 

^"Magoun  v  Illinois  Trust  &  Savings  Bank,   170   U.    S.   283    ((1898). 

37  People   V   Elerding,    254    111.    579    (1912). 

ss  People   V    Schenck,    257    111.    384    (1913). 

3»Massie   v   Cessna,    239    111.    352    (1909). 

""Public  Utilities  Commission  v  C.  &  W.  T.  Ry.  Co.,  275  111.  555   (1916), 

*i  Board   of   Administration    v   Miles.    278    111.    174    (1917). 

■*- Sheldon   v    Hoyne.    261    111.    222    (1914). 


Article  2,  Section  3  29 

uncontrolled  discretion  of  the  county  superintendent  of  schools  the  determina- 
tion of  what  would  constitute  a  satisfactory  and  efficient  high  school  dis- 
trict." But  the  court  sustained  the  validity  of  a  fire-escape  measure  which 
gave  to  the  factory  inspector  a  large  measure  of  discretion  as  to  the  number, 
location,  material  and  construction  of  fire  escapes  on  buildings  coming  within 
the  class  stated.^^  And  a  statute  may  vest  general  power  in  an  administrative 
body  like  the  board  of  health  to  grant  or  refuse  licenses  for  the  treatment  of 
human  ailments,  so  long  as  the  board  is  required  to  adopt  rules  and  regula- 
tions which  are  applicable  to  all  and  which  tend  to  test  the  qualifications  of 
applicants/^ 


Section  3.  The  free  exercise  and  enjoyment  of  religious  pro- 
fession and  worship,  without  discrimination,  shall  forever  be  guar- 
anteed; and  no  person  shall  be  denied  any  civil  or  political  right, 
privilege  or  capacity,  on  account  of  his  reUgious  opinions ;  but  the 
liberty  of  conscience  hereby  secured  shall  not  be  construed  to  dis- 
pense with  oaths  or  affirmations,  excuse  acts  of  licentiousness,  or 
justify  practices  inconsistent  with  the  peace  or  safety  of  the  State. 
No  person  shall  be  required  to  attend  or  support  any  ministry  or 
place  of  worship  against  his  consent,  nor  shall  any  preference  be 
given  by  law  to  any  religious  denomination  or  mode  of  worship. 

This  section  guarantees  the  full  and  free  right  to  entertain  any  religious 
belief,  to  practice  any  religious  principle  and  to  teach  any  religious  doctrine 
limited  only  by  the  laws  of  morality  and  property  and  the  personal  rights  of 
others,^"  and  prohibits  compulsion  as  to  religious  faith  or  forms  of  worship. 

It  was  held  by  the  Supreme  Court  that  this  section  prohibits  Bible  read- 
ings in  the  public  schools.  To  this  opinion  Hand  and  Cartwright  JJ.  filed  a 
vigorous  and  able  dissenting  opinion.  The  constitutional  provision  guaran- 
tees three  things;  (1)  freedom  of  religious  belief  and  worship,  (2)  freedom 
from  civil  or  political  disability  on  account  of  religious  belief  and  (3)  free- 
dom from  compulsory  support  or  taxation  for  a  church  establishment.  The 
decision  of  the  court  is  based  on  the  first  and  third  rights.  "The  free  en- 
joyment", the  court  held,  "of  religious  worship  includes  freedom  not  to  wor- 
ship". Reading  the  Bible  in  any  version  was  held  to  be  religious  worship.  It 
is  said,  as  to  the  second  ground,  that  the  reading  of  the  Bible  in  the  public 
schools  is  sectarian  instruction  supported  by  public  funds  and  therefore,  pro- 
hibited. The  dissenting  opinion  points  out  that  "the  framers  of  the  consti- 
tution of  1870  expressly  refused  to  incorporate  into  the  constitution  a  provi- 
sion excluding  the  Bible  from  the  public  schools".  Religious  toleration,  in 
the  view  of  the  minority  of  the  court,  does  not  demand  an  entire  absence  of 
moral  instruction  nor  does  it  forbid  teaching  the  principles  of  morality  by 
means  of  readings  from  the  Bible.*^  The  decision  in  this  case  is  against  the 
weight  of  authority  in  the  courts  of  other  states  and  of  the  United  States.  In 
an  earlier  case,  the  court  refused  to  issue  a  mandamus  to  compel  the  trustees 
of  the  University  of  Illinois  to  reinstate  a  pupil  who  had  been  expelled  for 
failure  either  to  attend  chapel  services  or  to  make  application  to  be  excused. 
The  decision  of  the  court  is  based  partly  on  the  ground  that  the  writ  was  not 


^"Kenyon   v  Moore.    287    111.   2.S3    (1919). 

"Arms   V  Ayer,    192    111.    601    (1901). 

*5  People    V    Kane,    288    111.    23.5    (1919). 

4«  Christian  Church   v   Church   of   Christ.    219   111.    503    (1906). 

*■?  People  V  Board  of  Education.  245  111.  334  (1910):  but  see  Millard  v 
Board  of  Education,  121  111.  297  (1887).  For  a  full  diiicussion,  see  Schofield, 
ReliRious  liberty  and  Bible  reading  in  Illinois  public  schools.  Illinois  Law- 
Review,  VI  p.  17,  91   (1911). 


30  Article  2,  Section  4 

asked  in  good  faith  to  protect  a  personal  interest.**  Religious  worship  has 
been  construed  to  include  every  variety  of  religious  faith  and  philosophy  of 
life  or  death.« 

The  guaranty  of  religious  freedom  applies  not  only  to  individuals  but  to 
religious  organizations,  and  all  questions  of  membership,  rites,  discipline,  doc- 
trine and  all  ecclesiastical  controversies  will  be  left  to  the  legislative  and 
judicial  bodies  of  such  organizations.^"  And,  although  the  civil  courts  will 
take  jurisdiction  for  the  determination  of  property  rights,  even  then,  as  to 
ecclesiastical  issues  involved,  the  adjudications  of  the  church  authorities  will 
be  binding  on  the  civil  courts  unless  their  action  is  manifestly  a  deviation 
from  the  established  laws  of  the  organization  and  a  perversion  of  the  funda- 
mental doctrines.^^ 

The  common  law  rule  and  the  early  law  in  Illinois  disqualified  a  witness 
from  testifying  unless  he  affirmed  a  belief  in  a  God  and  a  personal  account- 
ability for  sins."  This, section  prohibits  the  denial  of  any  civil  or  political 
right,  privilege  or  capacity  on  account  of  religious  opinion.  The  Supreme 
Court  has  held  that  the  right  to  vote  is  a  right,  privilege  or  capacity  within 
the  meaning  of  this  section  and  that  it  may  not  be  denied  on  account  of  re- 
ligious belief.'' 

The  provision  prohibiting  compulsory  support  of  a  ministry  or  place  of 
worship  has  been  construed  not  to  prevent  school  directors  from  permitting 
church  organizations  to  meet  in  school  buildings;^  nor  is  it  a  violation  of 
this  clause  to  permit  the  building  of  chapels  on  county  poor  farms.''  This 
prohibition  against  giving  a  preference  by  law  to  any  denomination  or  mode 
of  worship  has  been  construed  by  the  Attorney  General  to  have  no  application 
to  the  case  of  the  selection  of  chaplains  in  the  state  penal  institutions.'"  (See 
also,  discussion  article  8,  section  3.) 


Section  4.  Every  person  may  freely  speak,  write  and  publish 
on  all  subjects,  being  responsible  for  the  abuse  of  that  liberty ;  and 
in  all  trials  for  libel,  both  civil  and  criminal,  the  truth,  when  pub- 
lished with  good  motives  and  for  justifiable  ends,  shall  be  a  sufficient 
defense. 


Freedom  of  speech  as  guaranteed  by  this  section  is  subject  to  some  im- 
plied limitations.  Thus,  it  may  be  limited  by  a  proper  exercise  of  the  police 
power,  such  as  a  provision  in  the  medical  practice  act  prohibiting  advertising 
under  a  false  name.'^  The  exercise  of  free  speech  is  also  subject  to  the  inher- 
ent right  of  courts  to  punish  for  contempt,  but  under  the  constitutional  pro- 
vision this  power  is  restricted  to  actions  not  merely  defamatory  but  calcu- 
lated to  hinder,  obstruct  or  delay  them  in  the  exercise  of  their  proper  func- 
tions.'* 

The  second  clause  expressly  abrogates  the  common  law  rules  both  that 
the  truth  alone  was  a  complete  defense  in  civil  actions  for  libel  and  that  the 
truth  was  not  a  defense  to  criminal  libel." 

f  North  V  Trustees  of  University  of  Illinois,   137  111.  296    (1891). 

^In  re  Walker.   200   111.   566    (1903). 

^«  Chase  v   Cheney.    58    111.   .^^09    (1871):    Fussell    v   Hail.    233    111     73.    (1908). 

51  Christian  Church  v  Church  of  Christ.  219  111.  503  (1906);  Presbyterian 
Church    V   Cumberland   Church,    245    111.    74    (1910). 

5^  Central  Military  Tract  'R.  R.   Co.  v  Rockafellow,   17   111.   541    (1856). 

f^^Hronek   v   People.    134    111.    3  39    (1890) 

54  Nichols   V   School   Directors,    93    111.    61    (1879). 

^»Reichwald    v   Catholic    Bishop    of   Chicago.    258    111.    44    (1913). 

"'•Report  Attorney  General   1914.  p.   130 

s'' People    V    Apfelbaum.    251    111     18    (1911) 

J8  Storey  v  People.  79  111.  45   (1875);  People"  v  Gilbert,   281  111.  619   ((1917). 
288   Iir''405^  (^19^9)  ^^'  "^'   ^^^    (1?09);  Ogren  v  Rockford  Star  Printing  Co., 


Article  2,  Section  5  31 

Section  5.  The  right  of  trial  by  jury  as  heretofore  enjoyed, 
shall  remain  inviolate ;  but  the  trial  of  civil  cases  before  justices  of 
the  peace,  by  a  jury  of  less  than  twelve  men,  may  be  authorized  by 
law. 


Although  the  guaranty  of  the  right  of  trial  by  jury  in  this  section  applies 
to  both  civil  and  criminal  proceedings,  the  discussion  here  has  been  limited 
to  civil  cases.  For  jury  trials  in  criminal  prosecutions,  see  section  9  of  this 
article  and  discussion  thereunder. 

The  Supreme  Court  has  said  that  the  first  clause  of  section  5  manifestly 
refers  to  a  jury  of  twelve  men,^  but  that  a  jury  of  less  than  twelve  may  by 
law  constitute  a  jury  for  justice  of  the  peace  courts,"^  and  "jury",  as  used  in 
section  13  of  this  article,  must  be  construed  with  reference  to  the  two  kinds  of 
juries.  So  a  statute  may  provide  for  eminent  domain  proceedings  for  road 
purposes  in  a  justice  of  the  peace  court  with  a  jury  of  six.*'^^  The  term  "jury" 
as  used  here,  has  come  to  mean  a  jury  from  the  county.  But  there  is  no  guar- 
anty in  civil  cases  as  in  criminal  prosecutions  of  trial  by  a  jury  of  a  parti- 
cular district  or  county.®' 

It  is  the  plain  purpose  of  this  section  of  the  constitution  of  1870  to  pre- 
serve the  right  of  trial  by  jury  to  the  same  extent  and  in  the  same  manner 
that  it  had  been  enjoyed.  The  phrase  "as  heretofore  enjoyed"  appears  in  this 
connection  for  the  first  time  in  the  constitution  of  1870.  The  precise  period 
of  time  referred  to  by  this  phrase  is  left  somewhat  uncertain  by  the  decisions 
of  the  Supreme  Court.  The  guaranty  of  jury  trial  in  the  constitution  of  1848 
was  construed  in  the  case  of  Ross  v  Irving  to  preserve  the  right  of  trial  by 
jury  as  it  was  understood  to  exist  at  the  time  of  the  adoption  of  the  consti- 
tution. In  this  case  the  court  sustained  the  validity  of  an  early  statute 
which  authorized  seven  commissioners  to  assess  the  value  of  improvements 
placed  on  land  by  an  evicted  claimant."^  This  construction  was  adopted  as  to 
section  5  of  the  constitution  of  1870  in  an  opinion  in  Commercial  Insurance 
Company  v  Scammon  holding  that  the  appellate  court  may  reverse  the  find- 
ing of  a  trial  court  and  render  final  judgment.®^  In  passing  upon  this  same 
question  in  1896  in  Borg  v  C.  R.  I.  &  P.  Ry.  Co.,  the  court  pointed  out  that 
courts  of  review  at  common  law  and  prior  to  1837  in  this  state  reviewed 
questions  of  law  alone,  and  that  the  power  to  reverse  without  remanding  and 
to  review  questions  of  fact  was  given  by  statute,  one  in  1827  and  the  other 
in  1837.  The  court  held  that  the  right  of  jury  trial  adopted  by  the  constitu- 
tion of  1870  was  the  right  as  it  existed  subject  to  this  power  of  the  appellate 
court  to  review  questions  of  fact.**®  But  the  year  following,  1897,  in  the  case 
of  George  v  People,  the  court  sustained  the  validity  of  the  indeterminate 
sentence  law  which  fixed  the  amount  of  punishment  in  criminal  cases  in- 
stead of  permitting  juries  to  do  so.  It  was  there  said  that  the  guaranty  of 
jury  trial  is  substantially  the  same  in  the  three  constitutions,  and  that  it  is 
the  right  to  trial  by  jury  as  it  existed  at  common  law,  which  these  provisions 
protect.®^  In  1898,  however,  in  City  of  Spring  Valley  v  Spring  Valley  Coal  Co., 
the  court  affirmed  the  holding  of  Borg  v  C.  R.  I.  &  P.  Ry.  Co.,  and  said  that  the 
right  of  trial  by  jury  which  is  preserved  by  the  constitution  is  the  right  as  it 
had  been  enjoyed  at  the  time  of  the  adoption  of  the  constitution."^  Two  de- 
cisions followed, — Brewster  v  People  in  1899  and  Paulsen  v  People  in  1902; 
both  consider  the  right  of  a  defendent  in  a  criminal  proceeding  to  waive  a 


eoMcManus   v   McDonough,    107   111.    95    (1883). 
«iHermanek  v  Guthman,  179  111.  563    (1899). 
«-McManus    v    [McDonough.    107    111.    95    (1883). 

63  People    V   Rodenberg,    254    111.    386    (1912);    City   of   Chi.^ago    v    Knobel,    232 
111.    112     (1908). 

"^Ross    V    Irving.    14    111.    171     (1852). 

«^  Commercial   Ins.   Co.   v   Scammon.    123    111.   601    (1888). 

^Borg  V   C.    R.   I.   &   P.   Ry.   Co..   162   111.    348    (1896). 

6' George    v    People,    167    111.    447     (1897). 

«8City   of  Spriiig  Valley   v   Spring   Valley  Coal   Co..    173    111.    497    (1898). 


32  Article  2,  Section  5 

jury.  In  the  first  case,  the  court  stated  the  two  constructions  and  held  that 
as  to  the  particular  offense  charged,  the  right  to  waive  a  jury  would  be  the 
same  under  either  construction .«"  In  Paulsen  v  People,  the  court  after  citing 
the  Brewster  case  for  the  opposite  view,  expressly  held  that  this  section  pro- 
tects and  preserves  the  common  law  right  of  jury  trial." 

While  it  is  impossible  to  reconcile  the  statements  of  the  court  in  these  de- 
cisions, the  cases  do  not  conflict  as  to  the  rights  which  are  held  either  to 
be  included  or  excluded  in  the  right  of  jury  trial.  The  result  in  each  instance 
is  to  preserve  the  substantial  right  of  trial  by  jury,  both  as  it  existed  at  com- 
mon law  and  as  it  had  come  to  be  at  the  time  of  the  adoption  of  the  constitu- 
tion and  to  exclude  from  the  protection  of  this  section  those  provisions  re- 
lating to  juries  which  are  not  fundamentally  included  in  the  right  of  jury 
trial.  Thus,  a  jury  except  in  civil  cases  before  justices  of  the  peace,  shall  be 
composed  of  twelve  men;  it  must  stand  impartial  between  the  parties;  it 
must,  for  criminal  cases,  come  from  the  vicinage;  it  must  concur  unanimously 
in  a  verdict;  and  a  litigant  may  not  be  deprived  of  the  right  of  jury  trial  in 
causes  where  such  right  had  previously  existed; — all  the^e  are  the  fundamental 
principles  which  cannot  be  changed  or  taken  away.  But  the  precise  manner 
of  obtaining  a  jury,  and  the  exact  extent  and  operation  of  juries  are  matters 
which,  under  the  constitution,  the  General  Assembly  may  regulate  and 
change.  This  construction  of  this  section  makes  unimportant  the  question 
whether  the  phrase  "as  heretofore  enjoyed"  relates  to  the  time  of  the  con- 
stitution or  earlier,  and  probably  gives  to  this  phrase  the  effect  intended  by 
the  constitutional  framers. 

This  section  is  a  guaranty  of  the  right  of  trial  by  jury  in  cases  where 
that  right  had  existed  before.  An  ordinance  which  authorizes  the  assessment 
by  three  commissioners  of  the  damages  against  an  owner  of  stock  running 
at  large,  violates  this  guaranty.'^  Nor  may  an  ordinance  authorize  a  pound 
master  to  sell  stock  taken  up  unless  the  owner  pays  a  penalty  and  costs." 
Where  an  act  to  provide  for  the  permanent  survey  of  land,  authorizes  a  re- 
port to  the  court  by  a  commission  of  surveyors,  it  will  be  presumed  that  the 
act  intends  that  the  report  together  with  other  evidence  shall  be  presented  to 
a  jury."  But  it  was  never  intended  to  extend  the  jury  system  into  the  special 
summary  jurisdiction  where  no  such  right  had  existed  before.  It,  therefore, 
has  no  application  to  contempt  proceedings,"  nor  to  a  proceeding  to  disbar  an 
attorney,^'  nor  a  probate  proceeding  to  compel  an  executor  to  inventory  per- 
sonal property,^"  nor  to  proceedings  against  sureties  on  appeal  bonds  after  con- 
viction of  the  principal,"  nor  to  a  law  adopted  in  1811  which  provided  for  an 
assessment  by  seven  commissioners  of  the  value  of  improvements  constructed 
by  claimants  to  land,^**  nor  to  eminent  domain  proceedings.'"  The  guaranty  of 
the  right  to  jury  trial  does  not  extend  to  cases  of  equity  jurisdiction^"  such  as 
a  bill  to  foreclose  a  mortgage*"^  nor  a  partition  suit  even  in  a  situation  where 
the  practical  effect  is  the  same  as  ejectment,^-  nor  a  bill  to  enjoin  insurance 
companies  from  the  prosecution  of  business  until  they  complied  with  state 
laws,^^  nor  a  proceeding  to  discover  assets  of  an  estate,^*  nor  to  purely  legal 


«9  Brewster   v    People.    183    111.    143    (1899). 

™  Paulsen   v   People,    195    111.    507    (1902). 

^Bullock    V    Geomble.    45    111.    218    (1867). 

"Willis    V    Legris,    45    111.    289     (1867). 

^3  Huston   V    Atkins.    74    111.    494    (1874). 

^^  People  V  Kipley,   171  111.  44    (1898);  People  v  Seymour,   272  111.  295    (1916). 

75  People    V    Goodrich,    79    111.    148    (1875). 

7"  Coffey   V   Coffey.    179    111.    283    (1899). 

"Hennies  v  Peaple.  70  111.  100  (1873);  Whitehurst  v  Coleen,  53  111.  247 
(1870). 

78  Ross   V    Irvins:,    14    111.    171    (1852). 

73  Wabash  R.  R.  Co.  v  Drainage  District.  194  111.  310  (1902);  Johnson  v 
Joliet    &    Chicag-o    R.    R.    Co..    23    111.    202     (^859). 

80  Phillips   V   Edsall,    127    111.    535    (1889).  •  , 

^1  Dowden  v   Wilson.   71    111.    485    (1874). 

«3  Flaherty    v    McCormick,    113    111.    538    (1885). 

•"^  North    American    Ins.    Co..    v    Yates.    214    111.    272    (1905) 

8*  Martin  v  Martin,   170   111.   18    (1897) 


Article  2,  Section  5  33 

controversies  such  as  the  assessment  of  contract  or  tort  damages  which  are 
merely  incidental  to  a  matter  concerning  which  equity  has  jurisdiction.^' 

It  is  not  an  infringement  of  this  right  for  the  General  Assembly  to  cre- 
ate new  rights  unknown  to  the  common  law  procedure  of  trial  by  jury  and 
make  provision  for  their  determination  without  a  jury,  such  as  proceedings 
to  adjudge  infants  dependent  under  the  juvenile  court  act,^"  to  compel  the 
support  of  paupers  by  relatives,*^  to  restore  lost  records,^**  to  enforce  an  at- 
torney's lien,"*"  or  to  destroy  gaming  apparatus.**"*  There  is  no  constitutional 
right  to  a  trial  by  jury  in  appeals  from  decisions  of  probate  courts  admitting 
wills  to  probate,"^  or  petitions  under  the  assignment  act  to  determine  that 
property  had  passed  to  the  assignee  for  creditors.-® 

Where  a  new  class  of  cases  is  directed  to  be  tried  as  chancery  causes 
and  it  appears  that  they  are  of  equitable  character  either  as  to  subject 
matter  or  the  relief  prayed  when  tested  by  the  general  principles  of  equity, 
the  statute  may  provide  for  the  determination  of  the  questions  of  fact  in- 
volved by  the  court  without  submission  to  a  jury  in  the  same  manner  as 
other  cases  in  equity.  Consequently  it  has  been  held  that  there  is  no  consti- 
tutional right  to  a  jury  trial  in  proceedings  in  equity  by  the  Attorney  Gene- 
ral to  dissolve  a  corporation,^^  by  a  creditor  of  a  corporation  in  equity 
against  stockholders  for  unpaid  stock  subscriptions,^*  or  to  compel  a  surviving 
partner  to  account  to  the  administrator  of  a  deceased  partner,®^  or  to  estab- 
lish title  under  the  burnt  record  act  in  an  equity  court,®*  regardless  of  the 
fact  that  the  decree  will  have  the  same  effect  as  a  judgment  in  ejectment.®' 

Of  course  it  is  not  competent  for  the  General  Assembly  to  defeat  the 
right  of  jury  trial  by  transferring  to  the  jurisdiction  of  an  equity  court, 
a  cause  legal  in  nature  in  which  the  right  of  jury  trial  had  existed  at  the 
time  the  constitution  was  adopted.  A  statute  providing  that  in  a  chancery 
proceeding  to  enforce  a  mechanic's  lien,  if  the  court  finds  no  right  to  a  lien 
exists,  it  may  render  judgment  as  at  law  for  the  amount  found  due,  is  a  depri- 
vation of  the  right  to  trial  by  jury  in  a  cause  involving  a  simple  contract  debt. 
Nor  is  it  a  valid  answer  to  this  objection  that  the  chancellor  may  submit 
questions  of  fact  to  a  jury  because  the  parties  are  entitled  to  a  jury  verdict 
which  shall  be  not  merely  advisory  but  binding  on  controverted  questions 
of  fact.®* 

It  is  the  function  of  a  jury  to  determine  controverted  questions  of  fact, 
but  whether  there  is  any  evidence  legally  tending  to  prove  a  material  issue 
is  a  question  of  law  for  the  court.  Consequently  the  action  of  courts  in 
excluding  the  evidence  or  directing  verdicts  is  not  an  invasion  of  the  right 
of  jury  trial;"®  nor  is  a  motion  asking  the  court  to  direct  a  verdict,  a  waiver 
of  the  right  of  jury  trial  as  to  questions  of  fact  at  issue. ^ 

It  has  been  noted  in  another  connection  that  under  the  common  law, 
causes  tried  by  jury  were  reviewed  on  error  or  appeal  solely  for  errors 
of  law.  This  method  of  reviewing  causes  continued  in  Illinois  until  by 
statute  in  1837  the  Supreme  Court  was  authorized  to  pass  upon  the  facts  and 


•^^  Keith   V    Henkleman,    173    111.    137    (1898)  j    Shedd    v    Seefeld,    230    111,    118 
(1907). 

8«  Lindsay   v   Lindsay,    257    111.    328    (1913);   Petition   of   Ferrier,    103    111.    367 
(1882). 

87  People  v  Hill.   163   111.   186    (1896). 

8s  Culver   v   Colehour.    115    111.    558    (1886). 

«»Standidge    v    Chicago    Kys.    Co..    254    111.    524    (1912). 

»« Frost    V    People,    193    111.    635    (1901). 

»i  Moody   V  Found,    208   111.   78    (1904). 

92Holnback  v  Wilson,   159    111.   148    (1895). 

'"Ward    V    Farwell,    97    111.    593     (1881);    Chicago    Mutual    Life    Indemnity 
Ass'n.    V    Hunt.    127    111.    257     (1889). 

wParmalee    v    Price.    208    111.    544    (1904). 

»''Maynard  v   Richards.    166    111.    466    (1897). 

^Heacock   v   Hosmer.    109    111.    245    (1884). 

®7  Harding    v    Fuller,    141    111.    308     (1892). 

s^Turnes  v  Brenckle,   249  111.   394    (1911);  but  see  Gage  v  E,wing.   107  111.  11 
(1883). 

»9  Commercial  Ins.  Co.  v  Scammon,  123  111.  60  (1888);  Frazer  v  Howe,  106  111. 
563    (1883). 

I  Wolf   V   Chicago   Sign   Printing   Co..   233   111.   501.    (1908). 


34  Article  2,  Section  5 

from  that  time  the  court  has  continuously,  in  cases  where  it  was  deemed 
proper,  reversed  the  judgment  and  refused  to  remand  the  cause  for  another 
trial.  Later  when  the  appellate  courts  were  organized  this  power  was 
transferred  to  them.  The  precise  nature  of  this  power,  however,  does  not 
seem  to  have  been  considered  by  the  court  until  after  the  adoption  of  the 
constitution  of  1870.  In  fact,  in  two  cases,  one  decided  in  1888  and  the 
other  in  1889,  the  court  said  that  the  authority  given  appellate  courts  was 
"limited  strictly  to  determining  whether  there  is  or  is  not  evidence  legally 
tending  to  prove  the  fact  affirmed  .  .  .  laying  entirely  out  of  view 
the  effect  of  all  modifying  or  countervailing  evidence."-  Whether  there 
is  or  is  not  such  evidence  is  a  question  of  law  and  the  power  to  determine 
it  is  the  same  possessed  by  trial  courts  in  passing  upon  motions  to  direct  a 
verdict. 

This  view,  however,  of  the  extent  of  the  powder  of  appellate  courts  to 
review  the  evidence,  is  rejected  by  the  court  in  a  number  of  later  decisions. 
It  is  now  definitely  settled  that  appellate  courts  have  more  extended  powers 
than  trial  courts  in  passing  upon  evidence  and  that  they  may,  upon  a 
consideration  of  the  evidence,  find  the  facts  to  be  different  from  the  finding 
of  the  court  from  which  the  cause  is  brought.  Nor  is  this  practice  an  in- 
vasion of  the  right  to  have  a  jury  pass  upon  the  facts  in  issue.  In  support 
of  this  position,,  the  court  said  that  the  right  of  jury  trial  preserved  by  this 
section,  was  the  right  as  it  existed  at  the  time  of  the  adoption  of  the  con- 
stitution and  that  the  right  of  jury  trial  as  it  was  then  enjoyed  was  subject 
to  the  power  of  a  court  of  review  to  review  the  judgments  of  trial  courts  on 
the  facts  and  to  reverse  such  judgments  without  remanding  the  causes  for 
further  trials.^ 

But  a  court  of  review  has  not  the  power  to  reverse  a  finding  and  assess 
damages  or  render  a  judgment  for  the  recovery  of  property  or  damages 
without  the  verdict  of  a  jury,*  unless  a  jury  has  been  waived  in  the  trial 
court,""  nor  may  an  appellate  court  reverse  and  remand  such  a  cause 
with  directions  to  the  trial  court  to  enter  a  judgment  for  damages  or 
property." 

The  rule  that  an  appellate  court  may  not  reverse  a  judgment  for  the 
defendant  and  enter  judgment  for  plaintiff  for  damages  or  property  has 
been  applied  to  divorce  proceedings  where  by  statute  a  right  to  a  jury 
trial  had  existed  prior  to  the  adoption  of  the  constitution.'  But  in  a  case 
where  two  trials  had  been  had  with  the  same  result  and  the  evidence 
showed  clearly  that  the  ends  of  justice  would  not  be  served  by  a  third 
submission  to  a  jury,  the  result  of  which  would  be  certain,  the  Supreme 
Court  reversed  a  judgment  of  the  trial  court  and  entered  final  judgment 
granting  a  divorce  to  the  complainant.^  A  dissenting  opinion  in  this  case, 
however,  expresses  the  view  that  the  cause  should  be  remanded  to  the 
trial  court  where  a  finding  by  a  jury  might  be  had. 

This  section  does  not  secure  a  jury  trial  without  cost  necessarily, 
and  a  statute  requiring  the  payment  of  reasonable  jury  fees  when  a  jury 
is  demanded  does  not  violate  the  guaranty  of  a  jury  trial.^  Since,  by  the 
constitution,  the  Supreme  Court  is  given  original  jurisdiction  of  mandamus 
proceedings  and  no  provision  is  made  for  a  jury  in  that  court,  the  guaranty 
of  the  right  of  jury  trial  must  be  held  not  to  apply  to  such  proceedings.^'^ 


2  Commercial  Insurance  Co.  v  Scammon,  123  111.  601  (1888);  Jones  v  For- 
tune,   128    111.    518    (1889). 

^Borg  V  C.  R.  I.  &  P.  Ry.  Co..  162  111.  348  (1896);  City  of  Spring  Valley 
Jo.^P-rV,"^  Valley  Coal  Co.,  173  111.  497  (1898);  Larkins  v  Terminal  R.  R.  Ass'n.. 
221    111.    428    (1906). 

*City  of  Spring:  Valley  v   Spring:  Valley  Coal   Co..    173    111.   497    (1898). 

5  Manistee  Lumber  Co.  v  Union  National  Bank,  143  111.  490  (1892);  United 
Workmen   v   Zuhlke,    129    111.    298    (1889) 

«OsRood   V  Skinner.   186   111.    491    (1900) 

'Kincaid  v  Kincaid,   256   111.   548    (1912). 

8  Lindsay  v  Lirdsay,   226  111.   309    (1907). 

o.r   T,,     A.^'T'P.y.  ^'^^^^^'^h^^^'  2:^1  111.  175    (1907);  Morrison  Hotel  Co.  v  Kirsner, 
^45    111.    431    (1910). 

i»  People    v    Mayor    of   Alton,    233    111.    542     (1908), 


Article  2,  Section  6  35 

The  court  has  held  unconstitutional  a  statute  that  permitted  a  party  to 
appeal  to  the  Supreme  Court  from  a  judgment  of  the  appellate  court  re- 
versing and  remanding  a  cause,  by  stipulating  that  a  final  judgment  may 
be  entered  against  him  if  the  appeal  is  not  prosecuted  with  effect.  The 
effect  of  such  a  provision  might  be  to  require  the  Supreme  Court  to  pass 
upon  questions  of  fact  which  the  party  not  stipulating,  is  entitled  to  have 
tried  by  jury."  The  right  of  jury  trial  is  a  rule  of  procedure  applying  to 
cases  litigated  in  this  state.  It  is  not  a  right  guaranteed  citizens  of  Illi- 
nois which  attends  them  in  litigation  in  other  jurisdictions.  Thus  an  equity 
court  will  not  enjoin  the  prosecution  of  a  suit  in  Missouri  against  a  citizen 
of  this  state,  on  the  ground  that  by  the  law  of  Missouri  a  valid  verdict 
may  be  rendered  by  three-fourths  of  a  jury  of  twelve."  It  has  also  been 
held  that  a  statute  making  certain  evidentiary  facts  prima  facie  evidence 
of  an  ultimate  fact  or  conclusion  does  not  deprive  a  party  of  the  right  to 
have  a  jury  determine  the  facts,  if  the  facts  given  a  probative  value  have 
a  fair  and  natural  relation  to  the  ultimate  fact.^'' 

In  civil  suits,  the  right  to  have  a  jury  determine  the  facts  involved 
may  be  waived  by  agreement  of  both  parties  thereto  and  a  finding  had  by 
the  court  alone,^*  and  such  waiver  will  be  presumed  from  a  participation 
in  a  trial  before  a  judge  without  objection.'^  Trial  may  be  had  with  a  jury 
of  less  than  twelve  jurors  by  agreement  of  the  parties  thereto."  A  waiver 
of  trial  by  jury  is  binding  only  as  to  the  first  trial  and  after  a  remand  either 
party  may  demand  a  jury."  Nor  is  such  a  waiver  binding  on  the  defendant 
when  the  plaintiff  subsequently  files  an  amended  declaration  forming  new 
and  different  issues.  " 


Section  6.  The  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  papers  and  effects  against  unreasonable  searches  and 
seizures,  shall  not  be  violated;  and  no  warrant  shall  ifjsue  without 
probable  cause,  supported  by  affidavit,  particularly  describing  the 
place  to  be  searched,  and  the  persons  or  things  to  be  seized. 


This  section  has  been  construed  not  to  change  or  abridge  the  common 
law  right  to  arrest  without  warrant  in  certain  cases;  nor  does  it  apply  to 
the  search  of  persons  under  arrest  for  particular  offenses,  an  element  of 
which  is  the  possession  of  dangerous  weapons  or  particular  articles.'' 
It  has  no  application  to  a  rule  requiring  policemen  at  certain  times  to  sub- 
mit to  a  physical  examination.-"  Search  warrants,  however,  are  not  avail- 
able as  aids  to  the  enforcement  of  civil  proceedings  or  private  rights  and 
a  provision  in  an  act  to  protect  manufacturers,  bottlers  and  dealers  from 
loss  of  bottles,  kegs  and  similar  containers,  authorizing  the  issuance  of  a 
search  warrant  for  the  recovery  of  such  articles,  is  invalid.^  It  is  not  im- 
proper for  courts  in  civil  proceedings  to  require  the  production   of  books 


"Patterson  v  Warfield,  233  111.  147  (1908);  Hayward  v  Sencenbaugh  235 
111.    580    (1908). 

1^  Illinois   Life   Ins.   Co.   v   Prentiss,    277    111.    383    (1917). 

13  Meadowcrof t  v  People,  163  111.  56  (1896);  C.  B.  &  Q.  R.  R.  Co.,  v  Jones, 
149    111.    361    (1894). 

i^City  of  Highland  Park  v  McMullin,  249  111.  568  (1911);  C.  S.  F.  &  C.  Ry. 
Co.    V    Ward,    128    111.    349    (1889). 

15  Rothschild  V  Mudd  &  Hughes,  33  111.  476  (1864);  Miller  v  Simons,  156 
111.    113    (1895);   Burgwin   v   Babcock,    11    111.    28    (1849). 

i"Rehm    v   Halverson,    197    111.    378    (1902). 

17'Rigdon    V    Moore,    242    111.    256    (1909). 

"Gage   V   Commercial   National   Bank   of   Chicago,    86    111.    371    (1877). 

19  North  v   People,    139    111.   81    (1891). 

20  People  v   Steward,   249    111.   311    (1911). 
2iLippman   v  People,    175   111.    101    (1898). 


36  Article  2,  Section  6 

or  writings  which  contain  evidence  material  to  the  issue;"  but  if  the  pur- 
pose or  effect  of  the  order  is  to  compel  a  general  disclosure  of  the  busi- 
ness transactions  of  a  party,  it  is  within  the  meaning  of  the  prohibition 
against  unreasonable  searches  and  seizures.-'  Consequently  a  party  re- 
quired to  produce  books  of  account  may  seal  up  and  conceal  parts  not 
relating  to  the  matter  at  issue-'  and,  if  necessary,  the  court  may,  in  lieu 
of  exposing  books  in  which  pertinent  matter  is  intermingled  with  other 
items,  order  the  clerk  of  court  to  make  an  accurate  copy  of  the  pertinent 
items/'  But  an  order  depriving  a  party  of  his  books  and  committing  them 
to  the  court  clerk  for  an  indefinite  period  for  inspection  by  the  opposing 
party  is  a  violation  of  this  section.^® 

It  is  not  within  the  prohibition  against  unreasonable  searches  to  re- 
quire the  keeping  of  records  or  furnishing  of  information  for  tax-assessing 
and  tax-collection  bodies,^"  or  to  require  a  sworn  monthly  report  by  manu- 
facturers of  butter  and  cheese  on  the  cooperative  plan.^* 

In  several  early  cases,  however,  municipal  ordinances  have  been  de- 
clared unconstitutional  by  reason  of  authorizing  the  search  and  seizure  of 
intoxicating  liquor  when  the  possession  of  such  liquor  was  illegal  only 
when  kept  for  purposes  of  sale  or  gift  within  city  limits,-**  And  an  ordinance 
prohibiting  sales  of  liquor  but  exempting  sales  by  druggists  for  certain 
purposes  and  requiring  sworn  statements  of  such  sales,  has  been  held  an 
unreasonable  invasion  of  private  rights  by  inquisition  into  a  private 
business.*" 

The  affidavit  which  is  necessary  for  the  issuance  of  a  warrant,  must 
state  the  facts  constituting  the  crime  and  be  sufiiciently  definite  so  that 
if  false,  perjury  might  be  assigned.-*  A  complaint  therefore  which  alleges 
the  ownership  of  stolen  property  and  that  it  is  in  the  possession  of  an  un- 
known person  is  invalid  since  it  does  not  charge  the  commission  of  an 
offense  and  aver  probable  cause  to  suspect  that  a  certain  person  committed 
the  same.*^  A  warrant  for  the  search  and  seizure  of  property  contemplates 
the  taking  into  custody  of  the  person  found  in  possession.-"  Since  the 
objects  of  searches  are  either  criminal  by  nature,  or  the  possession  of  them 
is  prohibited  by  law,  notice  by  the  bringing  in  of  the  person  in  possession  is 
suflScient  notice  to  the  owner  for  the  purpose  of  a  judicial  inquiry  as  to  the 
disposition  to  be  made  of  them.''*  The  constitutional  provision  requires  that 
the  affidavit  describe  with  particularity  property  to  be  seized.  But  in  the 
case  of  gambling  apparatus  and  implements,  a  complaint  and  writ  using 
these  terms  is  sufficient.''''  The  requirement  that  a  warrant  be  supported  by 
afladavit  is  self-executing  and  a  provision  in  the  county  court  act  dispensing 
with  an  oath  in  the  filing  of  an  information  at  the  instance  of  the  state's 
attorney  or  Attorney  General  is  unconstitutional  and  void.^*' 

It  has  been  held  that  the  unauthorized  and  illegal  search  of  a  defen- 
dant's room  and  the  seizure  of  incriminating  articles  will  not  render  such 
articles  inadmissible  in  evidence  to  prove  the  guilt  of  the  defendant." 


•2  Swedish  American  Tel.  Co.    v  Fidelity  &  Casualty  Co.,   208   111.   562    (1904). 

=»  Walter  Cabinet  Co.   v   Russell,   250   111.   416    (1911). 

s^Denison    Cotton   Co.    v    Schermerhorn,    257    111.    128    (1913). 

2spynchon   v   Day,    118    111.    9    (1886). 

2"  Lester   v    People,    150    111.    408    (1894). 

2' National   Safe  Deposit  Co.   v   Stead,   250   111.   584    (1911). 

28  Hawthorn    v    People,    109    111.    302    (1883). 

29Darst  V  People,  51  111.  286  (1869);  Sullivan  v  City  of  Oneida,  61  111.  242 
(1871). 

3»City   of   Clinton   v   Phillips.    58    111.    102    (1871). 

&i  Myers   v   People,   67    111.    503    (1873). 

s3Housh  V  People,    75   111.    487    (1874). 

33  White  V  Wagar,   185   111.   195    (1900). 

31  Glennon  v   Britton.   155   111.   232    (1895). 

3«  Frost   v   People,    193    111.    635    (1901). 

30  People  v  Clark,  280  111.  160  (1917);  but  see  People  v  /iskniski  255  111. 
384    (1912). 

37Gindrat    v    People,    138    111.    103     (1891). 


Article  2,  Sections  7,  8  3? 

Section  7.  All  persons  shall  be  bailable,  by  sufficient  sureties,, 
except  for  capital  offenses,  where  the  proof  is  evident  or  the  pre- 
sumption great ;  and  the  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when  in  cases  of  rebellion  or  invasion  the 
public  safety  may  require  it. 


The  question  whether  a  particular  offense  is  bailable  under  this  pro- 
vision is  addressed  to  the  court  and  the  fact  that  a  grand  jury  has  returned 
an  indictment  for  murder  does  not  preclude  an  inquiry  of  the  facts  by  the 
court  to  ascertain  whether  the  offense  is  of  a  grade  which  is  bailable."®  It 
has  also  been  held  that  the  Supreme  Court  would  not  admit  to  bail  pending 
the  determination  of  a  writ  of  error  unless  it  was  very  clear  that  no  con- 
viction could  be  had  upon  another  trial.'*^ 


Section  8.  No  person  shall  be  held  to  answer  for  a  criminal 
offense,  unless  on  indictment  of  a  grand  jury,  except  in  cases  in 
which  the  punishment  is  by  fine,  or  imprisonment  otherwise  than  in 
the  penitentiary,  in  cases  of  impeachment,  and  in  cases  arising  in 
the  army  and  navy,  or  in  the  militia  when  in  actual  service  in  time 
of  war  or  public  danger :  Provided,  that  the  grand  jury  may  be  abol- 
ished by  law  in  all  cases. 


This  section  has  been  referred  to  as  drawing  the  line  between  felonies 
and  misdemeanors,  requiring  that  felonies  be  prosecuted  by  indictment  but 
permitting  misdemeanors  to  be  prosecuted  on  information/''  but  in  a  later 
case  the  Supreme  Court  has  pointed  out  that  this  provision  limits  the  prose- 
cution on  information  to  offenses  punishable  by  fine  or  imprisonment  other- 
wise than  in  the  penitentiary.  Consequently  since  by  an  early  statute 
larceny  (including  petit  larceny)  was  an  infamous  crime,  involving  a  de- 
privation of  civil  rights,  petit  larceny,  though  a  misdemeanor,  was  punished 
by  loss  of  civil  rights  in  addition  to  fine  and  imprisonment  in  a  county 
jail  and  could  be  prosecuted  only  by  indictment.^^  And  an  offense  under  the 
civil  service  law  punishable  by  disqualification  from  holding  office  for  five 
years  in  addition  to  a  fine  and  imprisonment  in  a  county  jail,  cannot  be 
prosecuted  on  information. '^  But  a  criminal  statute  authorizing  a  court  to 
abate  a  nuisance  at  the  expense  of  the  defendant  and  punish  the  defendant 
by  fine  and  imprisonment  in  the  county  jail  does  not  bring  this  offense 
within  the  class  of  crimes  which  can  be  prosecuted  only  by  indictment  be- 
cause the  abatement  of  the  nuisance  is  not  a  part  of  the  penalty." 

It  has  been  contended  that  prosecution  on  information  is  limited  by  this 
section  to  offenses  punishable  by  fine  only,  and  offenses  punishable  by  im- 
prisonment otherwise  than  in  the  penitentiary  only,  but  the  construction  by 
the  Supreme  Court  includes  as  well,  offenses  punishable  by  either  fine  or 
imprisonment  otherwise  than  in  the  penitentiary,  in  the  alternative.** 

There  are,  therefore,  four  classes  of  cases  which  may  be  prosecuted  on 
information:     (1)  Offenses  punishable  by  fine  only;    (2)   offenses  punishable 


«« Lynch  v   People,   38   111.   494    (1865). 
33  Bennett   v   People,    94    111.    581    (1880). 
«» Brewster  v  People,   183   111.  143    (1899). 
"People  V   Russell,    245    111.    268    (1910). 
*3  People   V   Kipley,    171    111.    44    (1898). 
"People   V  Archibald,    258   111.    388    (1913). 
"People   V   Glowacki,    236   111.    612    (1908). 


38  Article  2,  Section  9 

by  imprisonment  otherwise  than  in  the  penitentiary  only;  (3)  offenses  pun- 
ishable either  by  fine  or  by  imprisonment  otherwise  than  in  the  peniten- 
tiary; (4)  offenses  punishable  both  by  fine  and  by  imprisonment  otherwise 
than  in  the  penitentiary. 

The  provision  of  this  section  does  not  apply  to  a  holding  either  by  a 
recognizance  or  by  imprisonment  to  await  the  presentment  of  the  grand 
jury.** 

The  proviso  as  to  the  abolishment  of  the  grand  jury  by  law  in  all  cases 
has  not  been  construed  by  the  Supreme  Court  but  the  Attorney  General  has 
said  that  the  grand  jury  may  not  be  abolished  by  law  as  to  some  offenses 
unless  it  is  abolished  entirely.** 


Section  9.  In  all  criminal  prosecutions,  the  accused  shall  have 
the  right  to  appear  and  defend  in  person  and  by  counsel ;  to  demand 
the  nature  and  cause  of  the  accusation,  and  to  have  a  copy  thereof ; 
to  meet  the  witnesses  face  to  face,  and  to  have  process  to  compel 
the  attendance  of  witnesses  in  his  behalf,  and  a  speedy  public  trial 
by  an  impartial  jury  of  the  county  or  district  in  which  the  offense  is 
alleged  to  have  been  committed. 


Criminal  prosecution.  This  section  has  no  application  to  summary 
proceedings  to  enforce  the  authority  of  a  court,  but  a  statute  which  au- 
thorizes a  court  to  punish  as  for  contempt,  for  refusal  to  appear  in  answer 
to  a  notary's  subpoena,  is  violative  of  this  section.*^  It  is  not  improper,  how- 
ever, for  a  statute  to  authorize  a  court  on  application  to  order  the  atten- 
dance of  a  witness  before  a  notary  and  in  the  event  of  refusal,  to  compel 
obedience  in  a  summary  way.'**  A  proceeding  to  disbar  an  attorney  is  not  a 
criminal  prosecution  in  which  there  is  a  right  to  meet  the  witnesses  face 
to  face.^ 


The  right  to  appear.  The  record  must  show  the  presence  of  the  ac- 
cused in  court.^**  But  if  present  at  the  commencement  of  the  trial  which 
proceeds  continuously,  he  will  be  presumed  to  have  been  present  at  every 
subsequent  stage,''^  down  to  the  return  and  receipt  of  the  verdict."^  How- 
ever, the  record  must  show  his  presence  during  the  hearing  of 
a  motion  for  a  new  trial."'*  Where  the  court  has  overruled  such 
a  motion  and  pronounced  judgment  in  the  absence  of  the  defend- 
ant, the  whole  proceeding  is  not  void,  but  may  be  corrected  by 
retracing  these  steps  in  his  presence."'*  The  constitutional  priv- 
ilege of  appearing  in  criminal  prosecutions  was  conferred  for  the  benefit 
and  protection  of  the  accused,  but  if  he  is  present  at  the  commencement  of 
trial  and  voluntarily  absents  himself,  he  will  have  waived  his   privilege.'' 

« Garrison  v  People.   21   111.   535    (1859), 

**' Report   Attorney  General    1908,   p.    52.     . 

*7puterbaugh    v    Smith,    131    111.    199     (1890);    Mclntyre    v    People,    227    111. 

*8  People  v   Kipley,    171   111.    44    (1898). 

*9  People  V  Stonecipher,   271  111.   506    (1916). 

5'' Harris   v   People.    130   111.    457    (1889). 

^iPadfield  v  People,  146  111.  660   (1893). 

"'' Sewell    V   People,    189    111.    174    (1901). 

^•■«  Harris    v    People,    130    111.    457    (1889). 

f^*  Harris    v    People,    138    111.    63     (1891). 

^^Sahlinger   v   People.    102    111.    241    (1882);    Gallagher    v    People     211    111.    158 


Article  2,  Section  9  39 

The  right  of  a  defendant  in  criminal  proceedings  to  be  present  in  court  does 
not  extend  to  writs  of  error  in  the  appellate  or  Supreme  Court."® 


Right  to  defend  in  person  and  by  counsel.  The  attorney  appointed  by 
the  court  to  defend  a  person  unable  to  secure  counsel  should  be  of  sufficient 
ability  to  protect  adequately  the  rights  of  the  defendant  and  must  not  have 
any  interest  adverse  to  the  defendant,  and  sufficient  time  must  be  allowed 
him  to  prepare  the  defense."  The  court  should  appoint  an  attorney  to  aid 
a  defendant  not  only  during  the  actual  trial  but  during  arraignment,  when 
the  accused  needs  such  counsel. °*  It  is  not  a  violation  of  this  provision  for 
the  court  in  its  discretion  to  limit  the  argument  of  counsel,  but  a  sufficient 
opportunity  must  be  afforded  to  permit  a  discussion  and  presentation  of  the 
whole  case  to  the  jury.^' 


Right  to  demand  the  nature  and  cause  of  the  accusation.  The  Supreme 
Court  has  been  called  upon  in  a  great  many  cases  to  determine  whether  the 
indictment  describes  the  offense  charged  with  sufficient  preciseness  and 
particularity  to  satisfy  the  constitutional  right  of  the  accused  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation  against  him.  The  degree 
of  particularity  required  is  indicated  in  a  general  way  by  the  purpose  of 
this  provision  as  stated  by  the  court,  viz.,  to  enable  the  accused  to  prepare 
fully  for  his  defense  and  also  to  plead  the  judgment  in  bar  of  a  subsequent 
prosecution  for  the  same  offense.'"  However,  the  second  reason  given  for  a 
specific  description  of  the  offense  is  rejected  by  the  court  in  a  later  case  for 
the  reason  that,  by  the  present  practice,  a  former  conviction  or  acquittal  is 
proved  by  parol  testimony  under  a  plea  of  not  guilty."'  It  is  also  said  that 
the  offense  must  be  described  so  as  to  enable  the  court  to  pass  sentence  in 
case  of  conviction.  It  has  been  held  that  an  indictment  for  extorting  money 
by  threats  to  kill  need  not  set  out  the  words  of  the  threat."^  An  indictment 
for  robbery  need  not  describe  with  absolute  accuracy  the  property  taken,®^ 
But  an  indictment  for  having  or  giving  away  an  obscene  pamphlet  must  set 
out  the  supposed  obscene  matter  if  possible,  or  aver  the  reason  for  its  om- 
mission.**  The  full  name  of  the  injured  party  or  the  initials  in  place  of  the 
Christian  name,  if  they  are  as  well  known,  must  be  stated  in  an  indict- 
ment,*'^ but  an  indictment  charging  the  sale  of  whiskey  without  a  license 
need  not  state  the  name  of  the  purchaser.*"  An  averment  that  the  pistol  was 
loaded  is  unnecessary  in  an  indictment  for  assault  with  a  deadly  weapon, 
to-wit,  a  pistol.''^  but  in  an  indictment  for  homicide,  the  means  whereby  life 
was  taken  must  be  averred  if  known,  and  the  instrumentality  must  not  be 
essentially  different  from  that  alleged  in  the  indictment.''^  Evidence  of  beat- 
ing the  deceased  to  death  with  a  gun  will  not  support  an  indictment  for 
murder  by  shooting.''' 

Where  there  is  a  statute  creating  an  offense,  it  is  generally  sufficient  to 
describe  the  offense  in  the  language  of  the  statute,™  so  an  indictment  under 
a  statute  prohibiting  a  banker  from  receiving  deposits  while  insolvent  need 


5«Fielden   v    People,    128    111.    595    (1889). 
"'People    v    Bopp,    279    111.    184    (1917). 
^«  Gardner   v   People,    106    111.    76    (1883). 
^»  White   v   People,   90    111.   117    (1878). 
««West   V   People,    137    111.    189    (1891). 
«i  People   v  Brady,    272    111.    401    (1916). 
63  Glover  v   People,    204   111.    170    (1903). 
63  People  V  Nolan,   250   111.  351    (1911). 
6*McNair    v    People,    89    111.    441     (1878). 
fi'Vandermark  v  People,   47  111.   122    (1868). 
««Cannady    v    People,    17    111.    158    (1855). 
«' Allen  V   People,   82   111.   610    (1876). 
«3  People   V    Lukoszus,    242    111.    101    (1909). 
«3Guedel  v  People,  43  111.  226    (1867). 
"»McCutcheon  v   People,   69   111.   601    (1873) 


40  Article  2,  Section  9 

not  aver  an  intent  to  defraud,  if  the  statute  does  not  make  that  a  material 
element.^^  An  indictment  under  a  statute  prohibiting  the  distribution  to  or 
by  minors,  of  publications  principally  made  up  of  criminal  news  is  sufficient 
without  incorporating  all  the  matter  contained  in  the  publication  or  reciting 
the  prohibited  matter. ''^  But  besides  stating  the  substantive  elements  of  the 
crime  in  the  statutory  language,  the  particular  transaction  must  be  identi- 
fied and  distinguished  by  apt  averments."  A  statute  may  be  so  general  in 
its  terms  that  an  indictment  following  its  language  will  not  apprise  the 
accused  of  the  precise  nature  of  the  crime  charged.  An  indictment  under 
such  a  statute  must  set  forth  the  specific  act  or  acts.'* 

Where  a  statute  creating  an  offense  contains  exceptions  or  provisos, 
these  need  not  be  negatived  by  an  indictment  framed  under  the  statute  un- 
less such  exceptions  or  provisos  are  embraced  in  the  same  clause  which 
creates  the  offense,  and  even  then  it  is  not  necessary  if  the  exceptions  or 
provisos  are  not  incorporated  with  the  enacting  clause,  by  apt  words  of 
reference.'^ 

The  Supreme  Court  has  sustained  the  validity  of  a  statutory  provision 
which  dispenses  with  a  specific  setting  out  of  the  particular  acts  and  trans- 
actions constituting  the  confidence  game,  and  makes  sufficient  an  indict- 
ment charging  the  unlawful  and  felonious  obtaining  of  money  (or  property) 
from  A.  B.     The  naming  of  the  victim  sufficiently  identifies  the  offense. ''* 

Informations  when  substituted  for  indictments  in  the  county  court  by 
statute  must,  like  indictments,  inform  the  accused  of  the  nature  and  cause 
of  the  accusation,"  and  in  both  informations  and  indictments,  the  proper 
venue  must  be  laid.'^* 

Many  of  the  cases  cited  under  this  subheading  discuss  the  sufficiency  of 
the  indictment  in  question  without  an  express  reference  to  the  constitu- 
tional provision,  but  the  requirement  as  to  particularity  and  preciseness  in 
indictments  is  based  on  the  constitutional  right  of  the  accused  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation  against  him. 


Right  to  meet  the  witnesses  face  to  face.  The  reading  by  counsel  to 
a  jury  from  medical  books  which  have  not  been  introduced  in  evidence  and 
the  statement  as  to  what  an  absent  witness  would  have  testified  deprive  a 
defendant  of  his  right  to  confront  the  witnesses  against  him.'*  This  consti- 
tutional right  makes  impossible  the  use  of  depositions  in  criminal  prose- 
cutions as  in  civil  cases  for  the  purpose  of  supplying  the  testimony  of  ab- 
sent witnesses,  but  it  does  not  render  inadmissible  what  is  known  as  record 
evidence,^  nor  does  it  prevent  the  use  of  public  records  which  import  verity. 
Thus,  in  a  prosecution  for  bigamy,  proof  may  be  made  by  the  certificate  of 
marriage  returned  to  the  county  clerk,  or  copy  thereof,  or  the  county  clerk's 
record  of  the  return."^ 

A  defendant  in  a  criminal  case  is  not  deprived  of  his  privilege  of  meet- 
ing the  witnesses  by  a  statute  which  authorizes  a  court  to  grant  a  continu- 
ance on  account  of  the  absence  of  a  material  witness  unless  the  opposing 
party  admits  in  evidence  the  affidavit  as  to  what  such  witness,  if  present, 
would  testify,  since  the  constitutional  right  may  be  waived  to  secure  the 
advantage  of  an  immediate  trial.^^*  Nor  is  it  a  deprivation  of  this  right  to 
admit  on  the  trial  of  a  case  the  testimony  given  at  a  proliminary  hearing  by 

■^  Meadowcroft  v   People,   163    111.   56    (1896). 
•^^Strohm   v   People,    160    111.    582    (1896). 
■^^West  V   People,   137   111.    189    (1891). 
'^Cochran   v   Peoale,    175   111.    28    (1898) 
■^•''' Beasley  v   People,    89    111.    571    (1878). 
"'People   V   Brady,    272    111.    401    (1916). 
'■'Parris   v   People,   76    111.    274    (1875). 
■^^  People    V    Hig-gins,    15    111.    110    (1853). 
''^Yoe   V  People,    49    111.    410    (1868). 
8*  Sokel   V   People,    212    111.    238    (1904) 
«i  Tucker   v   People,    122    111.    583    (1887). 
'i-'Hoyt  V   People,   140   111.   588    (1892) 


Article  2,  Section  9  41 

a  witness  since  deceased.^^  The  admission  in  evidence  of  dying  declara- 
tions in  homicide  cases  is  an  exception  to  the  right  to  meet  the  witnesses 
face  to  face,**  but  statements  of  the  deceased  tending  to  show  a  motive 
which  are  neither  dying  declarations  nor  a  part  of  the  res  gestae,  are  in- 
admissible, since  motive  is  a  fact  which  must  be  proved  by  witnesses  met 
face  to  face.*^ 


Right  to  a  speedy  public  trial.  The  right  to  be  tried  without  undue 
delay,  as  expressed  in  general  terms  in  this  section  has  been  given  effect 
by  legislation  requiring  trials  of  accused  persons  within  certain  limited 
periods  (Kurd's  Revised  Statutes  1917,  chap.  38,  sec.  438)  and  providing  that 
failure  to  bring  a  defendant  to  trial  within  the  period  or  term  of  court  fixed 
shall  operate  as  a  complete  discharge.  While  this  means  entire  immunity 
from  prosecution  for  the  offense  charged,*"  it  does  not  bar  subsequent  prose- 
cution for  a  different  and  distinct  offense  growing  out  of  the  same  trans- 
action.*^ To  give  effect  to  the  constitutional  intent,  the  period  fixed  must 
date  from  the  arrest,  and  not  from  the  time  the  indictment  is  returned.**" 
But  where  a  first  trial  resulted  in  a  hung  jury,  the  period  commences  to 
run  again  from  the  date  of  the  disagreement  of  the  jury.'^  Neither  the  sick- 
ness of  the  judge  nor  inability  for  other  reasons  to  preside  nor  the  fact  that 
the  trial  judge  dispensed  with  a  petit  jury  can  operate  to  defeat  the  right  of 
an  accused  to  be  put  on  trial  within. the  period  fixed  by  statute.*'  But  the 
constitutional  provision  prohibits  only  arbitrary  and  oppressive  delays  and 
has  no  reference  to  the  delay  caused  by  the  prosecution  of  a  writ  of  error  to 
the  Supreme  Court.^^ 

The  right  of  a  defendant  in  a  criminal  prosecution  to  a  public  trial  is 
not  denied  by  a  temporary  closing  and  locking  of  the  doors  of  the  court 
room  on  account  of  noise  and  confusion,  so  long  as  no  one  was  denied 
access  to  the  room." 

Trial,  as  used  in  this  section,  means  by  a  fully  constituted  court  and  a 
hearing  for  two  days  in  the  absence  of  the  judge,  his  place  being  filled  by 
members  of  the  bar,  does  not  constitute  a  trial.*^  Even  the  absence  of  the 
judge  from  the  court  room  during  the  closing  argument  for  the  prosecution 
is  a  deprivation  of  the  right  to  a  trial.*'  But  it  is  not  error  for  a  judge  to  go 
to  an  adjoining  room  during  the  argument  of  counsel,  when  the  door  re- 
mained open  and  he  was  in  a  position  to  pass  upon  questions  presented.^' 


Trial  by  an  impartial  jury.  A  consideration  of  the  right  to  jory  triar. 
in  criminal  cases  necessarily  involves  the  more  comprehensive  provision  of 
section  5  of  this  article,  that  "the  right  to  trial  by  jury,  as  heretofore  en- 
joyed, shall  remain  inviolate".  In  passing  upon  the  right  of  a  defendant  to^ 
waive  a  jury  in  criminal  prosecutions,  the  court  has  made  reference  to  the- 
phrase,  "as  heretofore  enjoyed",  which  occurs  in  the  other  section. 

In  several  early  cases  decided  prior  to  the  adoption  of  the  constitution,, 
a  waiver  of  the  right  to  a  jury  trial  in  prosecutions  for  misdemeanors  wa& 
permitted,^®  but  it  was  held  that  a  jury  was  an  indispensable  part  of  a  court 


ssBarnett  v  People,   54   111.   325    (1870). 

*«Starkey  v   People,   17   111.    17    (1855). 

MWeyrich   v   People,    89    111.    90    (1878). 

«"  People    v    Heider,    225    111.    347    (1907). 

s^Nagel    v    People,    229    111.    598    (1907). 

ssQuthman   v  People,    203    111.    260    (1903). 

8»  People    v    Jonas,    234    111.    56    (1908). 

aoNewlin  v   People,    221   111.    166    (1906). 

»iMarzen   \    People.    190   111.    81    (1901). 

»3  Stone    v   People,    3    111.    326    (1840). 

^^Meredeth  v  People    84  111.   479    (1877). 

w  Thompson  v  People,    144   111.    378    (1893). 

»-^  Schlntz   V   People,    178    111.    320    (1899). 

»8  Zarresseller  v  People.  17  111.  101    (1855);  Darst  v  People,  51  111.  286   (1869> 


42  Article  2,  Section  9 

for  the  trial  of  felony  cases,  and  that  the  consent  of  the  accused  could  not 
vest  jurisdiction  in  a  judge  to  try  a  case  alone.*'  In  holding  that  a  jury 
might  be  waived  in  the  trial  of  misdemeanors,  it  has  been  shown  that  it  is 
immaterial  in  this  connection  whether  the  phrase,  "as  heretofore  enjoyed", 
refers  to  the  common  law  system  of  jury  trials  or  whether  it  means  the 
jury  system  that  existed  at  the  time  of  the  adoption  of  the  constitution  since, 
in  either  case,  a  jury  of  twelve  men  was  indispensable  only  for  offenses 
which  required  a  commencement  by  indictment.*^  In  a  more  recent  decision, 
the  court  after  holding  that  the  constitution  guarantees  the  right  of  trial 
by  jury  as  it  existed  at  common  law,  points  out  that  the  use  of  the  term 
"misdemeanors"  to  indicate  the  class  of  cases  in  which  a  jury  may  be 
waived,  is  inaccurate,  since  at  common  law  a  trial  by  jury  was  known  only 
as  to  cases  which  followed  upon  indictment,  and  under  the  construction 
placed  on  section  8  of  this  article,  an  indictment  is  required  in  the  case  of 
certain  misdemeanors.  Consequently,  a  jury  trial  may  be  waived  only  in 
the  trial  of  those  misdemeanors  which  may  be  commenced  otherwise  than 
by  indictment."  It  has  been  held,  however,  that  the  right  to  waive  a  jury  in 
any  kind  of  a  criminal  case  is  dependent  upon  a  statute  vesting  jurisdiction 
in  the  court  without  a  jury,  but  this  point  seems  to  have  been  overlooked  in 
the  earlier  cases.^  The  right  of  jury  trial  does  not  include  the  right  to  have 
one  jury  try  an  issue  of  misnomer  and  a  different  jury  to  pass  upon  the 
merits.^  Nor  is  there  a  constitutional  right  to  have  the  jury  fix  the  punish- 
ment, but  it  may  be  fixed  by  operation  of  law,  as  in  the  case  of  an  indeter- 
minate sentence,*  or  by  the  court  as  in  convictions  for  wi^e  abandonment.* 
The  expression  "impartial  jury"  as  incorporated  in  the  constitution  had  a 
fixed  and  definite  meaning  in  the  common  law,  and  must  be  understood  to 
mean  a  jury  which  stands  indifferent  between  the  parties.  The  court,  how- 
ever, in  determining  the  competency  of  a  juror  has  distinguished  between 
mere  impressions  which  have  been  hastily  formed,  and  the  decided  bias 
which  comes  from  a  fixed  opinion.  It  was  early  recognized  that  the  fact 
that  a  prospective  juror  had  expressed  his  opinion  was  entitled  to  considera- 
tion in  determining  whether  the  opinion  was  apt  to  be  of  an  abiding  char- 
acter. In  fact,  in  the  first  decision  by  the  Supreme  Court  on  this  question, 
it  was  said  that  no  opinion,  whether  the  most  hasty  impression  or  a  con- 
firmed belief,  would  disqualify  unless  it  had  been  expressed,^  but  shortly 
after  this  decision,  the  court  in  a  leading  case  laid  down  the  rule  that  if  a 
juror  had  made  up  a  decided  opinion  upon  the  merits  of  the  case,  either 
from  personal  knowledge  of  the  facts,  or  from  the  statements  of  witnesses, 
or  from  the  relations  of  the  parties,  or  from  rumor,  and  that  opinion  was 
positive  and  not  hypothetical,  he  was  disqualified."  A  statute  providing  that 
the  forming  of  an  unexpressed  opinion  shall  not  disqualify  if  the  juror  shall 
state  he  can  fairly  and  impartially  render  a  verdict  and  the  court  shall  be 
satisfied  of  the  truth  of  the  statement,  does  not  violate  the  constitutional 
provision,^  but  it  must  be  construed  as  merely  admitting  in  evidence  the 
statement  of  the  juror  along  with  other  facts  by  which  the  court  can  de- 
termine his  qualifications.^ 

While  the  limits  to  the  examination  of  prospective  jurors  by  counsel 
must  rest  in  the  sound  discretio:.i  of  the  court,  it  must  afford  a  reasonable  op- 
portunity, not  only  to  disclose  ground  for  challenge  for  cause,  but  also  other 


»T  Harris  v  People,  128  111.  585   (1889);  Morgan  v  People,   136  111.  161    (1891); 
but   see  Kelly  v  People,    115   111.   583    (1886). 
»3  Brewster   v   People,    183    111.    143    (1899). 
»» Paulsen   v  People,   195   111.   507    (1902). 

1  Brewster   v   People,    183    111.    143    (1899). 

a  Schram   v   People,    29    111.    162    (1862). 

3  George  v  People,  167  111.  447   (1897);  People  v  Illinois  State  Rtformatory, 
148    111.    413    (1894). 

4  People   V    Heise,    257    111.    443    (1913). 

5  Noble    V    People,    1    111.    54     (1822). 
"Smith   V   Eames,    4    111.    76    (1841). 
''Spies  V   People,   122   111.   1    (1887). 
sCoughlin  V  People,   144   111.   140    (1893). 


Article  2,  Section  10  43 

facts  which  might  have  a  bearing  on  the  exercise  of  the  right  of  peremptory- 
challenge.  Otherwise,  it  is  practically  a  denial  of  the  right  to  a  fair  and  im- 
partial jury.^  Thus,  in  selecting  a  jury  for  a  trial  on  the  charge  of  selling 
intoxicating  liquor  to  a  person  in  the  habit  of  becoming  intoxicated,  it  is 
error  not  to  permit  the  defendant's  attorney  to  inquire  as  to  membership  in 
temperance  societies  or  leagues  formed  for  the  prosecution  of  a  certain  class 
of  persons.^" 


The  locality  from  which  the  jury  is  to  come.  This  section  guarantees 
the  right  of  a  person  accused  of  crime  to  be  tried  by  a  jury  of  the  county 
or  district  in  which  the  offense  is  alleged  to  have  been  committed.  County 
or  district  corresponds  to  the  visne  or  neighborhood  of  the  common  law  and 
has  come  to  mean  simply  county.  It  has  no  relation  to  a  judicial  circuit,  so 
that  when  the  right  to  a  trial  in  a  particular  county  is  waived  by  an  appli- 
cation for  a  change  of  venue,  there  is  no  constitutional  requirement  that  it 
be  sent  to  another  county  in  the  same  circuit. ^^  A  statute,  however,  permit- 
ting offenses  committed  within  one  hundred  yards  of  a  county  line  to  be  tried 
in  either  county,  is  invalid.  The  court  expressly  exempts  from  this  holding 
offenses  committed  on  a  county  line  or  within  an  inappreciable  distance  from 
it  and  cases  where  the  offense  is  committed  by  a  person  in  one  county  on  a 
person  or  thing  in  another  county."  For  the  same  reason,  the  city  court  act 
can  not  have  application  to  a  city,  the  territory  of  which  lies  in  two  counties. '=* 

While  the  constitutions  of  1818  and  1848  limit  absolutely  the  jurisdiction 
of  criminal  offenses  to  the  county  where  the  offense  actually  was  committed, 
the  revised  wording  in  the  present  constitution  must  be  taken  as  evidence  that 
the  intent  was  to  empower  the  General  Assembly,  in  its  discretion,  to  pro- 
vide for  the  presentment  of  indictments  in  which  the  allegation  as  to  the 
venue  is  not  in  accordance  with  the  fact,  and  to  determine  what  offenses  shall 
be  treated  as  transitory.  Therefore,  a  statute  providing  that  when  an  offense 
is  committed  on  a  railroad  car  or  water-craft,  and  it  cannot  readily  be  de- 
termined in  what  county  the  commission  actually  occurred,  it  may  be  prose- 
cuted in  any  county  through  which  the  car  or  water-craft  has  come  on  or 
near  the  time  of  the  commission  of  the  offense,  does  not  violate  the  consti- 
tutional provision." 


Section  10.     No  person  shall  be  compelled  in  any  criminal  case; 
to  give  evidence  against  himself,  or  be  twice  put  in  jeopardy  for  the. 


same  ojffense. 


Self  crimination.  The  first  clause  in  this  section  guarantees  the  right 
of  a  person  to  refuse  to  answer  any  question,  if  the  answer  will  expose  him 
to  imprisonment,  fine,  forfeiture  or  penalty.^'  The  provision  is  directed 
against  compulsion  in  obtaining  self-criminating  evidence  and  not  against 
testimony  voluntarily  offered.  Incriminating  statements  made  by  an  accused 
after  being  warned  that  they  might  be  used  against  him,  are  properly  re- 
ceived in  evidence."  But  testimony  elicited  by  a  special  interrogation  of  the 
accused  at  a  coroner's  inquest,  not  given  voluntarily  or  of  his  own  motion. 


» Donovan   v   People,    139    111.    412    (1891). 
wLavin    y.    People,    69    111.    303     (1873). 
"Weyrich    v    People,    89    111.    90    (1878). 
"Buckrice  v  People,   110  111.   29    (1884). 
13  People    v    Rodenberg,    254    111.    386    (1912). 
"Watt  v  People,   126   111.   9    (1888). 

^5  People   V  Butler   Street  Foundry   and   Iron   Co.,    201    111.   236    (1903). 
laHoch   v   People,   219   111.    265    (1906). 


44  Article  2,  Section  10 

cannot  be  used  to  convict  him  at  a  later  trial."  Answers  made  by  a  defend- 
ant to  a  creditor's  bill  to  discover  property  fraudulently  concealed,  cannot  be 
read  in  evidence  against  a  defendant  on  trial  under  indictment  for  fraud.*' 
An  indictment  should  be  quashed  when  it  is  shown  that  it  is  based  upon  the 
testimony  of  the  accused  who  was  taken  from  jail  to  appear  before  that 
"body.*^  Even  after  a  defendant  an  arraignment  has  pleaded  guilty,  if  it  ap- 
pears that  he  is  a  foreigner  and  does  not  understand  the  charge  against  him, 
or  his  rights,  he  should  not  be  called  upon  by  the  court  to  divulge  incrimi- 
nating facts.^° 

The  privilege  of  refusing  to  testify  is  a  personal  one  and  must  be  claimed 
iDy  the  witness  himself  and  the  refusal  must  be  based  on  the  ground  that  the 
:answer  would  tend  to  criminate  him.^  A  principal  may  not  refuse  to  answer 
for  the  reason  that  his  answer  would  criminate  his  agent;"  nor  can  an  officer 
refuse  to  produce  books  and  papers  of  a  corporation  wlich  are  not  his  private 
records.^^  Nor  can  a  party  to  a  suit  assign  as  error  the  refusal  of  the  trial 
court  to  inform  a  witness  of  his  right  not  to  testify .^^  But  when  a  defendant 
has  waived  his  privilege  at  a  former  trial,  his  testimony  may  be  introduced 
against  him  at  a  subsequent  trial  at  which  he  does  not  take  the  stand.^^ 

A  witness  is  not  the  sole  and  absolute  judge  as  to  his  right  to  refuse  to 
answer,  but  the  court  must  be  able  to  see  from  the  circumstances  of  the  case 
and  the  nature  of  the  evidence  which  the  witness  is  called  upon  to  give,  that 
there  is  reasonable  grounds  to  apprehend  danger  to  the  witness  from  being 
compelled  to  answer.*  But  in  order  to  claim  the  protection  of  the  constitution- 
al privilege,  it  is  not  necessary  that  the  answer  to  a  particular  question  is  in 
itself  incriminating,  if  it  is  one  of  a  series  of  questions,  the  effect  of  which  is 
to  establish  criminality.  If,  as  the  court  has  said,  the  answer  would  disclose  a 
fact  which  forms  a  necessary  and  essential  link  in  the  chain  of  testimony 
which  would  be  sufficient  to  convict  him  of  any  crime,  he  is  not  bound  to 
answer  it,  so  as  to  furnish  matter  for  that  conviction.^"  And  if  a  witness 
voluntarily  discloses  part  of  a  transaction  exposing  him  to  criminal  prose- 
cution, he  waives  his  privilege  as  to  the  whole  transaction  so  long  as  it  is  a 
continuous  account.-* 

The  right  to  refuse  to  testify  does  not  extend  to  offenses  which  can  not 
he  made  the  basis  of  criminal  prosecution  by  reason  of  the  running  of  the 
•statute  of  limitations.'®  But  the  fact  that  the  prosecution  is  barred  by  the 
statute,  and  that  no  prosecution  is  pending,  must  be  shown  before  a  witness 
can  be  compelled  to  answer.^"  For  the  same  reason,  where  immunity  from 
prosecution  is  granted  a  witness,  he  may  not.  refuse  to  divulge  incriminating 
evidence.  But  the  immunity  must  cover  prosecution  as  to  all  offenses  in- 
volved in  the  transaction  which  is  the  subject  of  inquiry  and  be  co-extensive 
with  the  constitutional  privilege.  Thus,  a  witness  granted  immunity  from 
prosecution  for  bribery  may  refuse  to  answer  if  his  answers  would  tend  to 
criminate  him  of  gambling.^*  But  if  there  is  merely  a  bare  possibility  that  the 
disclosure  will  furnish  evidence  of  violations  of  laws  of  the  United  States  or 
other  states,  that  is  not  a  real  and  probable  danger  which  will  afford  reason 
for  refusing  to  testify.^* 


"Lyons    v    People,    137    111.    602     (1891). 

isparrish   v   Byrns,    67    111.    522    (1873). 

i»  Boone   v  People,   148    111.   440    (1894). 

""Gardner   v    People,    106    111.    76    (1883).    • 

gEggersv    Fox,    177    111.    185    (1898);    Buckingham    v    Angell,    238    111.    564 

22  N.  T.  Life  Ins.  Co.  v  People,   195   111.   430    (1902). 

23Lamson    v    Boyden,    160    111.    613    (1896). 

2*Bolen    V    People,    184    111.     338     (1900) 

2s  Miller   v   People,    216    111.    309    (1905). 

^"Manning  v  Mercantile   Securities   Co.,    242   111.   584    (1909). 

2'Minters   v   People,    139    111.    363    (1891). 

28  Samuel  v  People,   164   111.   379    (1897). 

2»Weldon  v  Burch,  12  111.  374   (1851). 

«»Lamson  v  Boyden,   160   111.   613    (1896). 

31  People    v    Argo,    237    111.    173    (1908) 

«3  People  v  Butler  Street   Foundry  and  Iron   Co.,    201   111.   236    (1903). 


Article  2,  Section  10  45 

The  prohibition  against  compelling  a  person  to  criminate  himself  neces- 
sarily implies  that  the  refusal  to  testify  may  not  be  the  basis  of  prejudice  or 
disadvantage.  The  failure  of  a  defendant  to  take  the  stand  may  not  be  the 
subject  of  comment  by  counsel  or  the  court,  nor  can  reference  be  made  to  the 
right  of  the  defendant  to  testify  in  his  own  behalf.^^  And  the  same  rule  has 
been  applied  to  the  testimony  of  a  co-defendant,  particularly  where  the  prose- 
cution had  the  same  opportunity  to  offer  his  testimony.** 

It  was  contended  that  the  practice  of  entering  a  rule  on  the  defendant 
to  answer  in  contempt  proceedings  for  acts  committed  out  of  the  presence  of 
the  court,  was  unconstitutional  for  the  reason  that  it  compelled  the  defend- 
ant to  give  evidence  against  himself.  The  court,  however,  refused  to  pass 
upon  this  question  since  no  exemption  from  answering  had  been  claimed  in 
the  trial  court.'*^  The  fact  that  a  witness  might  have  properly  refused  to 
answer  is  no  defense  to  a  perjury  charge  if  he  waives  his  privilege  and 
testifies  falsely .^^ 


Double  Jeopardy.  The  provision  against  double  jeopardy  for  the  same 
offense  prohibits  the  retrial  of  a  defendant  after  discharge  by 
reason  of  not  being  afforded  a  speedy  triaP^  or  by  acquittal.  This  bars  the 
prosecution  of  a  writ  of  error  by  the  state  in  a  criminal  prosecution^^ 
whether  for  a  felony  or  misdemeanor.'*'  So  a  person  indicted  for  murder 
and  convicted  of  manslaughter,  who  obtains  a  new  trial,  may  not  be  tried 
again    for    murder.*' 

But  a  trial,  which  in  contemplation  of  law,  does  not  constitute  jeopardy 
will  not  bar  a  subsequent  prosecution.  The  court  has  so  held  as  to  a  trial 
under  an  indictment  which  was  nolle  prossed  before  a  complete  jury  was 
selected  and  sworn;"  and  a  trial  in  which  the  jury  were  unable  to  reach 
a  verdict;^-  and  also  a  trial  in  which  the  verdict  had  been  set  aside 
upon  motion  of  the  defendant.*^  A  trial  in  a  felony  case  by  a  judge  without 
a  jury  does  not  constitute  jeopardy  so  as  to  preclude  a  subsequent  prose- 
cution.** 

One  transaction  may  include  several  offenses,  and  the  prosecution  for 
one  offense  will  not  bar  a  subsequent  prosecution  for  a  separate  and  dis- 
tinct offense.*^  One  who  has  been  convicted  for  assault  and  battery  may  be 
placed  on  trial  for  riot  for  the  same  transaction.*''  And  so  the  trial  and 
acquittal  on  a  charge  of  larceny  by  embezzlement  based  on  some  forged 
notes  does  not  bar  a  later  trial  for  forgery,  the  notes  being  the  basis  of 
both  prosecutions.*^  The  principle  is  carried  even  to  the  extent  of  holding 
that  a  trial  and  acquittal  for  murdering  a  certain  person  by  shooting  is  not 
a  bar  to  a  prosecution  for  the  murder  of  the  same  person  by  beating  with 
a  gun.*^  In  other  words  the  second  offense,  to  constitute  double  jeopardy, 
must  agree  in  law  and  in  fact  with  some  offense  of  which  the  accused 
might  have  been  convicted  under  the  first  indictment.  A  plea  of  former 
acquittal  of  a  crime  committed  in  one  county  will  not  be  valid  on  a  trial 
in  another  county  except  as  to  a  transitory  offense  for  which  an  indictment 
might  be  returned  in  either  county.**  The  same  act  may  be  an  offense 
against  the  state  and  a  municipality  and  may  be  punished  by  both.     Thus, 

33  Miller  v  People,   216   111.   309    (1905). 

31  People  V   Munday.   280   111.   32    (1917). 

35  People   V    Sej^mour,    272    111.    295    (1916). 

3«Mackin   v   People,    115    111.   312    (1885). 

3' People   V   Heider,    225    111.    347    (1907). 

38  People    V    Royal,    2    111.    557     (1839). 

3»  People    V    Miner,    144    111.    308    (1893). 

*«Brennan   v   People.    15    111.    511    (1854). 

*iO'Donnell    v    People,    224    111.    218    (1906). 

*3Dreyer   v    People,    188    111.    40    (1900). 

*^  Gannon   v  People,   127    111.    507    (1889);    Lane   v  People,   10   111.   305    (1848). 

'^'^  Paulsen  v   People.    195   111.    507    (1902). 

"sNagel   V   People.    229    111.    598    (1907);    People    v  Nail,    242    111.    284    (1909). 

"'Freeland   v   People.    16   111.    380    (1855). 

47  Spears  v   People,    220    111.    72    (1906). 

*'»Guedel   v    People.    43    111.    226    (J867). 

^Campbell   v    People,    109    111.    565    (1884). 


46  Article  2,  Section  11 

a  conviction  under  a  city  ordinance  will  not  bar  a  prosecution  by  the  state 
for  the  same  act.'"  In  fact,  a  statute  may  permit  a  township  to  recover  a 
fine  or  penalty  and  another  statute  permit  the  state  to  punish  the  same  act 
as  a  nuisance 


51 


It  has  been  held  that  statutes  providing  heavier  penalties  for  repeated 
offenses  do  not  violate  the  prohibition  against  putting  a  person  in  jeopardy 
twice   for  the   same  offense/^ 


Section  11.  All  penalties  shall  be  proportioned  to  the  nature 
of  the  offense;  and  no  conviction  shall  work  corruption  of  blood  or 
forfeiture  of  estate;  nor  shall  any  person  be  transported  out  of  the 
state  for  any  offense  committed  within  the  same. 


Proportionate  penalties.  It  has  been  suggested  that  the  provision  re- 
quiring that  punishments  be  proportioned  to  offenses  is  equivalent  to  the 
prohibition  in  the  federal  constitution  against  cruel  and  unusual  punish- 
ments. It  is  directed  to  the  law-making  body  and  courts  are  reluctant  to 
sustain  an  objection  to  a  penalty  fixed  by  that  body  unless  it  is  a  cruel  and 
degrading  punishment  unknown  to  the  common  law,  or  so  wholly  dispro- 
portionate as  to  shock  the  moral  sense.'^ 

The  Supreme  Court  has  sustained  a  fine  of  not  less  than  $1,000  for 
failure  on  the  part  of  railroad  companies  to  make  and  file  statements  of 
taxable  property;*^  a  fine  of  $200  by  ordinance  for  selling  or  giving  away 
intoxicating  liquor  without  a  license  under  a  statute  authorizing  cities  to 
punish  by  a  fine  of  not  over  $200;'^'  a  penalty  of  from  $1,000  to  $5,000  for 
unjust  discrimination  in  rates  for  carriage;'®  and  a  fine  of  from  $500  to 
$1,000  for  rebating  by  insurance  companies."  Inasmuch  as  the  maximum 
term  provided  by  law  cannot  be  said  to  be  disproportionate,  commitment 
under  the  indeterminate  sentence  act  for  a  period  not  longer  than  the 
maximum  term  provided  will  not  violate  the  constitutional  provision.'^ 
More  severe  punishments  for  subsequent  convictions  are  sustained  on  the 
theory  that  a  repetition  of  the  offense  aggravates  the  guilt,  and  are  not 
objectionable.'* 

That  a  person  has  committed  so  many  offenses  that  the  combined  punish- 
ment is  severe  does  not  constitute  any  objection  to  the  penalty  provided 
for  each  count  as  in  the  case  of  sentence  on  seventy-one  counts  for  viola- 
tions of  the  liquor  laws  on  different  days.*"* 

But  a  statute  prohibiting  discriminations  in  freight  rates  and  providing 
for  the  forfeiture  of  all  franchises  as  a  penalty  for  violation,  in  effect  im- 
poses a  fine  which  would  in  some  cases  amount  to  millions  of  dollars  and 
does  not  proportion  the  penalty  to  the  offense." 


Corruption  of  blood  and  forfeiture  of  estate.     This  prohibition  against 
corrupton  of  blood  or  forfeiture  of  estate  has  not  been  invoked  against  legis- 


BORobbins  v  People.  95  111.  175   (1880);  Hankins  v  People,  106  111.  628   (1883). 

siWragrg  v  Penn  Township,   94   111.  11    (1879). 

52  Kelly   V   People,    115    111.    583    (1886). 

"People    V   Elliott,    272    111.    592    (1916). 

5*C.  R.  I.  &  P.  Ry.  Co.  V  People,  217  111.  164   (1905). 

55  City   of  Areola  v  Wilkinson,   233   111.   250    (1908). 

5«  People   v  B.   &  O.   S.  W.   R.   R.   Co.,    246   111.   474    (1910). 

"People  v  American   Life   Ins.   Co.,    267   111.   504    (1915). 

58  People  v   State  Reformatory,   148   111.   413    (1894). 

5»  Kelly  v  People,    115   111.   583    (1886). 

«» People   V  Elliott,    272    111.    592    (1916). 

«iC.  &  A.  R.  R.  Co.  V  People,   67  111.   11    (1873). 


Article  2,  Section  12  47 

lative  enactment  but  has  been  construed  by  the  Supreme  Court  in  civil 
cases.  It  has  been  held  that  the  legal  execution  of  the  insured  is  not  a 
defense  to  a  suit  on  a  policy  of  insurance  for  his  death  unless  made  so  by 
a  provision  to  that  effect  in  the  policy.*^-  Nor  does  an  heir  by  causing  the 
death  of  his  intestate  forfeit  or  lose  either  the  equitable  or  legal  right 
to  take  from  the  intestate.^ 


Section  12.  No  person  shall  be  imprisoned  for  debt,  unless 
upon  refusal  to  deliver  up  his  estate  for  the  benefit  of  his  creditors, 
in  such  manner  as  shall  be  prescribed  by  law;  or  in  cases  where 
there  is  strong  presumption  of  fraud. 


This  section  abolishes  imprisonment  for  debt  as  it  existed  at  common 
law.  Wrongful  evasion,  or  attempted  evasion,  of  a  debt  is  made  the  basis 
for  imprisonment  instead  of  mere  inability  to  satisfy  the  debt.^*  A  statute 
authorizing  the  arrest  of  the  defendant  in  suits  on  specialties,  bills  or  notes 
in  writing,  judgments,  and  actions  on  contracts  and  covenants,  upon  the 
plaintiff  making  affidavit  that  otherwise  the  debt  is  in  danger  of  being  lost, 
is  in  direct  conflict  with  this  provision  and  void.""  It  is  necessary  in  order  to 
imprison  for  debt,  that  one  of  two  things  be  shown,  a  refusal  on  the 
part  of  the  debtor  to  deliver  up  his  estate  for  the  satisfaction  of  his  obli- 
gations or  fraud  either  in  contracting  the  debt  or  in  avoiding  payment  of  it.^ 

Debt,  within  the  meaning  of  this  section,  includes  any  liability  to  pay 
money  growing  out  of  a  contract,  either  express  or  implied.®^  The  pro- 
hibition applies  only  to  debts  in  the  proper  and  popular  sense  where  the 
relation  of  debtor  and  creditor  exists  and  not  to  actions  of  debt  for  the 
recovery  of  penalties  inflicted  for  violations  of  the  penal  laws  of  the  state,"* 
nor  to  penalties  for  violations  of  municipal  ordinances,"®  nor  fines  and  costs 
in  criminal  proceedings.'**  It  does  not  apply  to  imprisonment  in  tort 
actions,'^  nor  for  wife  abandonment,"  nor  bastardy." 

The  Supreme  Court  has  repeatedly  said  that  the  commitment  of  a 
defendant  for  contempt  in  refusing  to  pay  alimony  was  not  an  imprisonment 
for  debt  within  the  meaning  of  this  section.''^  But  in  a  number  of  decisions, 
the  court  has  intimated  that  orders  or  decrees  for  the  payment  of  money 
are  within  the  spirit  of  the  prohibition  contained  in  this  section,  and  that  im- 
prisonment for  contempt  for  non-compliance  with  a  decree  for  the  payment 
of  money  should  only  follow  fraud  or  a  willful  and  obstinate  defiance  of  the 
court. '^  Thus,  imprisonment  should  not  be  imposed  for  contempt  for  failure 
to  comply  caused  by  an  honest  misconception  of  the  meaning  of  the  court 
order.^" 


C2  Collins   V  Metropolitan   Ins.   Co.,    232   111.   37    (1908). 

«3Wall   V   Pfanschmidt.    265   111.    180    (1914). 

»*Biirnap  v   Marsh,    13   111.   535    (1852);   People  v   Cotton,    14   111.    414    (1853). 

«5  Stafford   v   Low,    20   111.    152    (1858). 

«6  Malcolm  v  Andrews,  68  111.  100  (1873);  Huntington  v  Metzger,  158  111.  272 
(1895). 

«7  Parker   v    Fol'lensbee.    45    111.    473    (1867). 

«« People   V   Zito,    237    111.    434    (1909);    Kettles   v   People,    221    111.    221    (1906). 

"»City  of  Chicagro  v  Morell.   247   111.   383    (1910). 

™  Kennedy   v   People,    122    111.    649    (1887). 

^McKindley  v  Rising,  28  111.  337  (1862);  People  v  Walker,  286  111.  541 
(1919). 

^3  People  V  Heise,   257   111.   443    (1913). 

■^«Rich    V    People.    66    111.    513     (1873). 

■^*Wie:htman  v  Wightman,  45  111.  167  (1867);  Barclay  v  Barclay,  184  111. 
375    a900). 

^■"^  Goodwillie  v  Millimann.  56  111.  523   (1870);  Blake  v  People    80  111.  11  (1875^. 

'"Dinet  v   People,   73   111.   183    (1874). 


^8  Article  2,  Section  13 

Section  13.  Private  property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation.  Such  compensation,  when 
not  made  by  the  State,  shall  be  ascertained  by  a  jury,  as  shall  be 
prescribed  by  law.  The  fee  of  land  taken  for  railroad  tracks,  with- 
out consent  of  the  owners  thereof,  shall  remain  in  such  owners,  sub- 
ject to  the  use  for  which  it  is  taken. 


What  constitutes  a  public  use.  Property  cannot  be  taken  except  for 
public  use.  To  constitute  a  public  use  the  property  must  be  employed  so  as  to 
render  a  substantial  benefit  to  the  public  or  a  relatively  large  group  of  per- 
sons as  distinguished  from  individuals.''  Frequently  private  advantage  and 
public  benefit  are  both  served  by  a  use  of  property.  It  is  not  sufficient  to  con- 
stitute a  public  use,  within  the  meaning  of  this  section,  that  an  incidental 
benefit  is  derived  by  the  public.'^  On  the  other  hand,  the  use  may  be  a  public 
one  though  private  purposes  are  incidentally  served.™  Nor  is  a  use  rendered 
private  by  the  fact  that  private  parties  contribute  to  the  cost  of  the  improve- 
ment or  that  such  improvement  accommodates  some  more  than  others.**"  To 
constitute  a  public  use  something  more  than  a  mere  benefit  to  the  public  must 
flow  from  the  contemplated  improvement.  The  public  must  :be  to  some  ex- 
tent entitled  to  control,  use  or  enjoy  the  property  not  as  a  mere  matter  of 
favor  or  by  permission  of  the  owner,  but  as  a  matter  of  right.**^ 

There  are  three  types  of  public  uses  within  the  meaning  of  this  section: 
(1)  Property  may  be  taken  by  the  state  or  by  its  public  or  municipal  cor- 
porations for  the  purpose  of  housing  the  various  departments  and  agencies 
of  government.^^  (2)  Property  may  be  taken  for  the  purpose  of  enabling  the 
state  or  its  agencies  to  carry  out  its  functions  of  government,  such  as  would 
be  in  the  interest  of  trade,  commerce,  navigation,  public  health,  safety  and 
general  welfare.  Accordingly  land  may  be  taken,  for  the  improvement  of 
navigation,*^  for  jails,**^  public  hospitals,  public  schools,  public  parks,**'  roads 
and  streets,*"  forest  preserves,""  and  for  the  carrying  on  of  any  business  legally 
conducted  by  the  state  or  by  its  agents.*"*  The  Attorney  General  has  held 
that  the  state  has  power  to  take  over  coal  mines  in  emergencies  such  as  those 
caused  by  war.***  (3)  Property  may  be  taken  by  private  corporations  if  the 
use  to  which  the  property  is  to  be  devoted  is  of  a  character  from  which  the 
public  have  the  legal  right  to  demand  some  service.  Land  may  be  taken  by 
railroad  companies  and  other  public  utilities  to  enable  them  to  carry  on  such 
business.*^  Public  grist  mills  come  within  the  rule."'^  A  fourth  type  of  cases 
has  been  created  by  the  expansion  of  the  meaning  of  the  term  "public  use" 
by  express  constitutional  provisions,  which  authorize  a  taking  of  property  for 
roads  and  cartways  for  private  and  public  use  (article  4,  section  30)  and  for 
drainage  purposes   (article  4,  section  31). 

There  have  been  but  few  cases  in  this  state  in  which  the  court  has  ruled 
that  the  proposed  use  was  not  public.    The  following  have  been  held  not  to  be 


"C.  C.  C.  &  St.  L.  Ry.  Co.  v  Drainage  District,  213  111.   83    (1904). 

■'sSholl  v  German  Coal  Co.,   118  111.   427    (1887). 

79  Dunham  v  Village  of  Hyde  Park,   75  111.  371    (1874). 

«»C.  B.  &  Q.  R.  R.  Co.  V  City  of  Naperville,   169   111.  25    (1897). 

81  Chicago  Dock  Co.  v  Garrity,  115  111.   155    (1885);   Gaylord  v  Sanitary  Dis- 
trict,  204   111.   576    (1903). 

s^Deneen  v  Unverzagt,   225  111.   378    (1907). 

s^Beidler  v   Sanitary   District,   211   111.   628    (1904). 

8^  County  of   Mercer   v   Wolff.    237    111.    74    (1908). 

**s  Village  of  Depue  v  Banschbach,   273  111.   574    (1916). 

88  City  of  Chicago  v  Lord,  276  Til.  544    (1917). 

s^Perkms   v   Commissioners   of   Cook   County,    271    111.    449    (1916). 

88  Helm  v  City  of  Grayville,   224   111.   274    (1906). 

8»  Report  Attorney  General   1917-18,   p.    606. 
,,r     ^'^-  ^-  ^  ^A,^-  ^y-  ^^-  V  ^-  ^  W.  I.  R.  R.  Co..   97  111.   506    (1881);  C.  &  N. 
W.    Ry.    Co.    V   Chicago    Mechanics    Institute    239    111.    197    (1909):    Eddleman    v 
Union  County  Traction  &  Power  Co.,   217  111.   409    (1905) 

»i  Gaylord  v  Sanitary  District,   204  111.   576    (1903) 


Article  2,  Section  13  49 

for  a  public  use;  the  taking  of  a  right  of  way  by  a  coal  mining  company ;"- 
the  taking  of  land  for  a  mill  from  which  the  public  had  no  right  to  demand 
a  service  ;^^  the  taking  of  land  for  a  private  road  under  the  constitution  of 
1848;**  and  the  taking  of  land  by  a  railroad  for  a  side  track  to  a  manufactur- 
ing plant  for  the  sole  purpose  of  transporting  the  products  of  the  plant.**^ 


Property  subject  to  condemnation.  The  power  of  eminent  domain  ex- 
tends to  every  kind  of  private  property,^"  including  all  rights  and  interests  of 
all  kinds.®^  Contract  rights,  like  other  property,  are  subject  to  the  exer- 
cise of  eminent  domain  and  a  taking  for  public  use  upon  payment  of  just  com- 
pensation does  not  constitute  an  impairment  of  contract  obligations  within 
the  prohibition  of  article  2,  section  14.  A  legislative  grant  or  contract  in  re- 
straint of  a  free  exercise  of  the  right  of  eminent  domain  is  not  binding  on 
the  state.  Thus  the  stat.e  may  authorize  the  condemnation  for  streets  of 
property  belonging  to  a  cemetery  company  notwithstanding  a  provision  in 
its  charter  that  no  roads  or  streets  should  be  opened  through  its  grounds.^^ 

(In  connection  with  this  subheading  and  the  general  treatment  of  emi- 
nent domain  in  this  note,  see  discussion  article  11,  section  14.) 


Condemnation  of  property  already  devoted  to  public  use.  It  is  well 
established  that  property  already  devoted  to  public  use  is  still  subject  to  con- 
demnation. The  question  of  the  propriety  of  authorizing  the  condemnation  of 
such  property  is  primarily  a  legislative  question,**  but  is  subject  to  judicial 
review.^  Where  the  legislative  grant  of  the  power  of  eminent  domain  is  gen- 
eral, the  condemnation  of  property  already  devoted  to  public  use  will  be  up- 
held only  when  the  new  use  will  be  a  different  use,  not  necessarily  in  kind 
but  in  degree,  by  which  the  public  obtains  some  additional  advantage.  Ex- 
tensions of  streets  across  railways,^  and  railways  across  streets^  and  other 
railways,*  constitute  new  uses.  A  railroad  may  condemn  land  belonging  to 
another  railroad  which  is  not  devoted  by  the  latter  to  railroad  purposes,"  or 
even  a  part  of  the  tracks  of  another  railway  for  a  short  distance,*^  but  cannot 
condemn  a  considerable  portion  of  the  right  of  way.''  A  city  sewer  may  be 
constructed  through  land  devoted  to  public  uses  by  a  sanitary  district.*  But 
a  general  grant  of  the  power  of  eminent  domain  to  a  city  does  not  authorize 
a  city  to  condemn  a  strip  of  land  through  a  county  poor  farm;*  nor  to  con- 
demn a  part  of  a  library  building  for  a  city  street.^"  The  taking  of  property 
already  devoted  to  public  use  does  not  impair  the  obligation  of  any  con- 
tract." 

The  decisions  cited  above  merely  involve  the  question  of  the  power  of  a 
condemning  authority  acting  under  a  general  grant  from  the  General  Assem- 
bly to  exercise  the  right  of  eminent  domain.  There  is  one  Illinois  case,  how- 
ever, which  questions  the  power  of  the  state  to  authorize  the  condemnation 

»3Sholl  V  German  Coal  Co.,   118  111.  427    (1887). 
s^Gaylord  v   Sanitary   District,   204    111.   576    (1903). 
9*Nesbitt  V  Trumbo,  39  111.  110  (1866). 
»5C.   &  E.    I.   R.    R.   Co.   V    Wiltse,    116    111.    449    (1886). 
8«City   of  Edwardsville  v  County  of  Madison,   251   111.   265    (1911). 
»' South    Park   Commissioners    v   Ward    &   Co.,    248    111.    299    (1911);    Johnson 
V   Joliet   &   Chicago   R.    R.   Co.,    23    111.    202    (1859). 

»«Villag-e   of   Hyde  Park   v   Oakwoods   Cemetery   Ass'n.,    119    111.    141    (1886). 
«9  0'Hare  v  C.   M.  &  N.  R.   R.  Co..   139   111.   151    (1891). 

1  People  V  Walsh,  96  111.   232   (1880). 

2C.  R.   I.  &  P.  R.  R.  Co.  V  Town  of  Lake.   71  111.   333    (1874):   C.  &  A.  'R.  R. 
Co.   V   City   of   Pontiac,    169    111.    155    (1897). 

3M.   C.   Ry.   Co.   V   C.   W.   D.    Ry.   Co.,    87    111.   317    (1877). 

*B.   St.   L.  &  C.   Ry.   Co.   v   B.   C.   Ry.   Co.,    159    111.   544    (1896):   I.  C.  'R.    R. 
Co.  V  C.  B.  &  N.  R.   R.   Co.,   122   111.   473    (1887). 

^C.  W.  D.  Ry.  Co.  V  M.  W.  S.  El.  R.  R.  Co.,  152  111.  519    (1894). 

"L.    S.  &  M.   S.  *Ry.   Co.   v   C.   &   W.    I.   R.    R.   Co..    97    111.    506    (18.81). 

^Central  Ry.   Co.  v  F.   L.  H.   Ry.   Co.   81   111..    523    (1876). 

8  City  of  Chicag-o  v  Sanitary  District.   272   111.  37   (1916). 

"City  of  Edwardsville  v  County  of  Madison,   251   111.    265    (1911) 
"City  of  Moline  v  Greene,   252   111.   475    (1911). 

"Village  of  Hyde  Park  v  Oakwoods  Cemetery  Ass'n.,  119  111.  141  (1886): 
Long  Island  Water  Supply  Co.  v  Brooklyn,  166  U.  S.  685   (1897). 


50  Article  2,  Section  13 

of  property  dedicated  to  a  public  use.^^  The  property  sought  to  be  condemiK 
was  the  right  possessed  by  owners  of  property  abutting  a  public  park  to  ha-^ 
the  park  kept  free  from  buildings.  These  rights  or  easements  were  create 
by  the  dedication  of  the  land  for  park  purposes  with  this  restriction.  Tl 
court  held  unconstitutional  an  act  of  the  General  Assembly  which  express; 
authorized  the  park  board  to  condemn  these  easements  in  order  to  perm 
the  erection  within  the  park  of  a  privately  owned  museum.  Three  justici 
dissented  from  this  decision,  and  it  is  not  supported  by  the  courts  of  oth( 
states  or  of  the  United  States.^^  This  decision  seems  to  conflict  squarely  wil 
the  well-recognized  principle  that  a  state  may  not  by  contract  divest  itself 
the  power  of  eminent  domain  or  create  property  rights  which  are  not  su 
ject  to  that  power. 


Jury  trial.  There  was  no  right  to  trial  by  jury  in  eminent  domain  pr 
ceedings  under  the  general  guaranty  of  jury  trial  in  the  constitution  of  18: 
and  1848."  The  express  guaranty  of  jury  trial  contained  in  the  constitutic 
of  1870  is  self-executing.'''  It  does  not  apply  to  takings  by  the  state,"  but  tl 
Attorney  General  has  construed  the  eminent  domain  statute  with  its  pr 
vision  for  trial  by  jury,  to  apply  to  condemnation  by  the  state  unless  tl 
General  Assembly  provides  another  method." 

A  statute  authorizing  commissioners  to  determine  compensation  in  lie 
of  a  jury  in  takings  other  than  by  the  state,  is  unconstitutional,'^  but  a  findii 
by  commissioners  can  be  made  prima  facie  evidence  of  just  compensation 
The  right  of  trial  by  jury  is  not  satisfied  by  permitting  the  parties  to  obje 
to  a  verdict  rendered  by  a  body  of  twelve  men  upon  an  ex  liarte  hearing.  Tl 
parties  must  be  permitted  to  participate  in  the  selection  of  the  jurors.^''  Tl 
term  "jury"  as  used  in  this  clause  does  not  mean  a  common  law  jury  nec€ 
sarily,  but  includes  any  kind  of  jury  recognized  by  the  constitution.  Thi] 
a  jury  of  six  men  in  justice  of  the  peace  courts  is  a  jury  within  the  meanii 
of  the  eminent  domain  clause.-'  The  right  of  jury  trial  in  eminent  doma 
proceedings  conferred  by  the  constitution  is  a  mere  privilege  which  may  1 
waived  by  the  parties^  and  a  waiver  of  this  right  will  be  implied  unless 
specific  objection  to  trial  without  jury  is  made.^^ 


Interest  in   land  which  may  be  taken.     The  only  constitutional  limit 
tion  upon  the  interest  in  land  which  may  be  taken  is,  that  the  fee  of  lani 
taken  for  railroad  tracks  shall  remain  in  the  owner.^    But  in  the  absence 
an  express  grant  to  condemn  the  fee,  the  courts  hold  that  only  such  esta 
may  be  taken  as  is  necessary  to  accomplish  the  purpose  in  view. 

Under  a  general  statutory  grant  of  power  to  condemn  land,  park  coi 
missioners  may  take  for  drive  way  purposes  only  an  easement  in  the  land 
Likewise,  a  city  may  take  only  an  easement  in  land  to  be  used  as  a  street 
The  abutting  owner  may  use  the  subsidewalk  space.-'  A  telegraph  compai 
by  condemning  land  under  the  eminent  domain  act,  merely  acquires  the  rig 


"South  Park  Commissioners  v  Ward  &  Co.,   248   111.   299    (1911). 
"L.   &   N.   R.   R.   Co.   v    Cincinnati,    76    Ohio    481    (1907). 
"Johnson  v   J.  &  C.   R.  R.   Co.,    23   111.   202    (1859). 
13  Mitchell   V  I.   &  St.   L.   R.   R.  Co.    68    111.   286    (1873). 
i«  People    V    Stewart,    97    111.    123    (1880). 
"  Report   Attorney   General   1914,   p.    153. 

"  Juvinall  v  Jamesburg  Drainage  District,   204  111.   106    (1903). 
"C.   T.   T.   R.   R.   Co.   V  City  of  Chicago,    217   111.   343    (1905). 
s"  Wabash   R.   R.   Co.    v  Coon   Run   Drainage   District,    194    111.    310    (1902). 
2iMcManus  v  McDonough,   107   111.   95    (1883). 
2-'C.   M.   «&   St.   P.  'Ry.   Co.   v   Hock.    118   111.    587    (1886). 
2sjuvinall   v   Jamesburg   Drainage   District,    204    111.    106    (1903). 
24  C.   &  E.   I.   R.   R.   Co.   V   Clapp.    201   111.   418    (1903);    R.   I.   &  P.   R.   R.   Co. 
Leisy   Brewing   Co.,    174    111.    547    (1898). 

^s  Miller  v  Commissioners  of  Lincoln  Park,   278   111.   400    (1917). 
2«I.    C.    R.    R.    Co.    V    City    of    Chicago,    138    111.    453    (1891). 
27Tacoma   Safety  Deposit  Co.   v   City  of  Chicago,    247   111     192    (1910). 


Article  2,  Section  13  51 

to  use  it  for  the  erection  and  maintenance  of  its  poles  and  wires  and  the 
only  exclusive  right  of  occupancy  acquired  by  the  company  is  as  to  that 
ground  occupied  by  the  poles.'''*  The  owner  retains  the  fee  of  land  condemned 
by  a  drainage  district.'* 

An  easement  created  by  condemnation  for  a  public  purpose  exists  only 
so  long  as  the  property  is  used  for  that  purpose  and  when  such  use  ceases, 
the  property  reverts  to  the  owner  of  the  fee  or  his  heirs.*" 


What  constitutes  a  taking.  Under  the  constitutions  of  1818  and  1848, 
compensation  was  payable  only  where  property  was  "taken  or  applied." 
(Article  8,  section  11,  constitution  1818;  article  13,  section  11,  constitution 
1848.)  The  word  "applied"  seems  not  to  have  been  construed  nor  to  have 
added  anything  to  the  word  "taken".  In  as  much  as  the  constitution  of 
1870  requires  compensation  when  property  is  "taken  or  damaged"  the 
question  whether  an  injury  constitutes  a  taking  is  important  only  in 
connection  with  the  requirement  as  to  procedure  and  the  time,  manner 
and  extent  of  compensation.  Taking  has  been  defined  as  any  act  which 
causes  direct  physical  injury  to  property,  by  which  the  owner  is  deprived 
of  ordinary  use  and  enjoyment.^^  Taking  includes  all  appropriations  of 
property,  whether  of  fee  simple  title  or  of  easements  in  the  owner's  land; 
and  also  includes  the  imposition  of  additional  servitudes  upon  land  which 
was  subject  to  prior  easements  for  other  purposes.  For  example,  where  an 
easement  has  been  acquired  in  land  for  street  purposes,  the  use  of  that 
property  by  steam  railroads  constitutes  an  additional  servitude  thereon,  and 
is  a  taking  for  which  compensation  must  be  made  to  the  owner  of  the  fee.*^ 
And  this  applies  to  interurban  lines,^^  electric  light  lines^^  and  telegraph 
and  telephone  lines.*^  The  use  of  streets  by  street  railways,  however,  has 
been  held  not  to  be  an  additional  servitude.'*" 

Of  course,  no  question  of  additional  servitude  can  arise  when  the  fee 
to  streets  is  in  the  city.  In  this  case,  an  owner  of  land  abutting  a  street 
is  entitled  to  compensation  not  for  the  additional  uses  of  the  street,  but 
for  the  consequential  damage,  if  any,  to  his  abutting  property  caused  by 
that    use." 

In  the  case  of  injuries  to  natural  rights,  there  is  a  taking  only  when  the 
invasion  of  the  rights  produces  a  direct  and  physical  injury  to  property 
such  as  caused  by  the  overflowing  of  land,^*  the  casting  of  sparks  and 
cinders  upon  it,'®  the  removal  of  the  lateral  support  of  land'"  and  inter- 
ference with  riparian  rights." 

Since  there  is  a  taking  only  when  there  is  a  direct  and  physical 
damage  to  property,  the  right  to  compensation  under  the  constitutions  of 
1818  and  1848  was  not  coextensive  with  common  law  rights  against  private 


-'«Lockie  v  M.  U.  Telephone  Co.,   103   111.   401    (1882). 

2»West  Skokie  Drainage  District  v  Dawson,  243   111.  175   (1905). 

30  C.  &  E.  I,  'R.  R.  Co.  V  Clapp,  201  111.  418  (1903);  Sullivan  v  A.  T.  &  S.  F. 
Ry.  Co.,  251  111.  108   (1911);  Bell  v  Mattoon  Waterworks  Co.,   245  111.  544    (1910). 

aiNevins  v  City  of  Peoria,  41  111.  502  (1866);  Rigney  v  City  of  Chicago, 
102   111.    64    (1882). 

83  Bond  V  Penn.  R.  R.  Co.,  171  111.  508  (1898);  Spalding  v  M.  &  W.  I.  Ry.  Co., 
225  111.  585    (1907). 

33  Wilder  v  A.  DeK.  &  R.  El.  Tr.  Co..  216  111.  493  (1905);  City  of  Aurora 
V  E.  A.  &  S.   Tr.   Co.,    227   111.    485    (1907). 

3*  Carpenter   v   Capitol   Electric   Co.,    178    111.    29    (1899). 

35Burrall  v  American  Tel.  &  Tel.  Co.,  224  111.  266  (1906);  DeKalb  County 
Tel.    Co.   v.   Dutton,    228    111.    178    (1907). 

3«C.  B.  &  Q.   R.   R.  Co.   V  W.  C.  S.   R.   R.   Co.,   156   111.   255    (1895). 

37I>oane  v  Lake  St.  El.  R.  R.  Co.,  165  111.  510  (1897);  McWethy  v  Aurora 
B.  L.  &  P.   Co..   202  111.   218    (1903). 

38T.  W.  «&  W.  Ry.  Co.  V  Morrison,  71  111.  616  (1874);  Gaylord  v  Sanitary  Dis- 
trict,  204   111.    576    (1903). 

39  Stone  V  F.  P.  &  N.  W.  R.  R.  Co.,  68  111.  394    (1873). 

^«City  of  Quincy  v  Jones,  76  111.  231   (1875). 

"City  of  Kewanee  v  Otley,  204  111.  402  (1903);  Ballance  v  City  of  Peoria, 
180  111.  29    (1899). 


62  Article  2,  Section  13 

persons.  But  where  part  of  a  tract  was  taken,  all  consequential  damage 
to  the  remaining  tract,  measured  by  the  difference  between  its  fair  cash 
market  value  before  and  after  the  taking,  was  and  still  is,  under  the  con- 
stitution of  1870,  held  to  be  a  taking."  For  the  part  actually  taken,  the 
owner  is  entitled  to  receive  its  fair  cash  market  value. 


What  constitutes  damage.  Under  the  constitutions  of  1818  and  1848, 
compensation  was  allowed  only  when  property  was  taken.  The  construc- 
tion placed  upon  this  by  the  court  made  the  test  the  actual  physical  in- 
vasion of  the  property  affected.  Ta  this  provision,  the  constitution  of  1870 
added  the  words  "or  damaged",  with  a  view  to  afford  relief  in  those  cases 
where  no  recovery  had  previously  been  allowed  because  there  had  been  no 
physical  injury  although  the  property  may  have  been  rendered  less  valu- 
able. The  court,  in  allowing  compensation  for  the  damage  to  property 
by  cutting  off  access  from  that  property  to  the  street  except  by  stairs, 
construed  the  expanded  provision  of  the  constitution  of  1870  as  follows: 
"In  all  cases,  to  warrant  a  recovery  it  must  appear  there  has  been  some 
direct  physical  disturbance  of  a  right,  either  public  or  private,  which  the 
plaintiff  enjoys  in  connection  with  his  property,  and  which  gives  to  it  an 
additional  value,  and  that  by.  reason  of  such  disturbance  he  has  sustained 
a  special  damage  with  respect  to  his  property  in  excess  of  that  sustained 
by  the  public  generally.  In  the  absence  of  any  statutory  or  constitutional 
provisions  on  the  subject,  the  common  law  afforded  redress  in  all  such 
cases,  and  we  have  no  doubt  it  was  the  intention  of  the  framers  of  the 
present  constitution  to  require  compensation  to  be  made  in  all  cases  where, 
but  for  some  legislative  enactment,  an  action  would  lie  by  the  common 
law."*^  Recovery  has  been  allowed  for  the  depreciation  in  value  of  property 
caused  by  constructing  a  sidewalk  above  the  street  level  and  fourteen  inches 
higher  than  the  level  of  the  first  floor  of  a  building  on  that  property." 
The  physical  injuries  and  inconveniences  that  result  from  a  railroad  di- 
viding farm  property"  as  to  water,  pasture,  timber  and  improvements,"® 
together  with  the  noise,  smoke,  soot,  cinders  and  vibration  caused  by  the 
operation  of  trains,"^  if  buildings  are  near  enough  to  be  affected,  are  all 
elements  of  special  damages  for  which  compensation  may  be  had.  The 
danger  to  stock  and  of  loss  by  fire*^  and  increased  cost  of  insurance'*  may 
be  shown  if  the  market  value  of  property  is  affected  thereby.  In  the  case 
of  elevated  railways,  or  other  structures  recovery  may  be  had  for  the  ob- 
struction of  light  and  air,^  and  the  interference  with  free  access  to  the 
street  and  the  view."  This  construction  includes  all  cases  actionable  at 
common  law  except  where  property  is  damaged  under  the  police  power. 
The  non-existence  of  common  law  liability,  however,  does  not  in  itself 
defeat  the  constitutional  right  to  compensation.^^ 

Not  every  injury  to  private  property  which  may  affect  its  value,  can  be 
made  the  basis  for  a  recovery.  It  must  be  shown  as  to  noise,  dust,  smoke 
and  disturbance  from  the  operation  of  trains  that  a  special  damage  results 


"C.   B.   &  N.   R.   R.    Co.   v  Bowman,    122    111.    595    (1887);    I.   C.   R.    R.   Co.    v 
Turner.    194   111.    575    (1902). 

"Rigrney  v  City  of  Chicago.  102  111.  64   (1882). 

4*  Chapman  v  City  of  Staunton,   246   111.   394    (1910). 

*^C.  P.  &  St.   L.   Ry.  Co.  V  Blume,   137   111.   448    (1891);   C.  T.  T.   R.  R.  Co.  v 
Bugbee,   184   111.   353    (1900). 

^8C.  &  I.  R.  R.  Co.  v  Hopkins,  90  111.  316    (1878);  I.  C.  R.  R.  Co.  v  Town  of 
Normal,  175  111.  562   (1898);  C.  B.  &  N.  R.  R.  Co.  v  Bowman,  122  111.  595    (1887). 

"^C.  N.   S.   S.   Ry.   Co.  V   Payne,    192   111.    239    (1901);   C.   &  C.   C.   &  D.   Co.   v 
Morawetz.  195  111.   398    (1902);  I.  C.  R.  R.  Co.  v  Turner,   194  111.   575    (1902). 

"«!.   I.  &  M.   Ry.  Co.   v  Ring.   219  111.  91    (1905);   C.  S.   Ry.   Co.  v  Nolin,    221 
111.   367    (1906). 

*»I.  I.  &  I.  R.  R.  Co.  V  Stauber.  185  111.  9    (1900). 

soDoane  v  Lake  St.  El.  R.  R,  Co.,   165   111.   510    (1897);   Field  v  Barling,    149 
111.    556    (1894). 

siAldis  v  Union  El.  R.  R.  Co.,   203   111.   567    (1903). 
.    s2Aldis  V  Union  El.  R.  R.  Co.,   203  111.   567    (1903). 


Article  2,  Section  13  53 

not  of  a  kind  and  character  suffered  in  common  by  the  public  generally." 
The  impairment  in  value  of  property  by  reason  of  personal  danger  to  the 
owner,^*  or  on  account  of  the  location  of  a  jaiP=  or  a  small-pox  hospital,^ 
in  particular  instances,  has  been  held  to  be  speculative  and  not  within  the 
protection  of  the  constitution.  Nor  may  a  recovery  be  had  for  damages 
which  do  not  arise  from  the  violation  of  any  right,  as  in  the  case  of  loss 
of  trade  caused  by  a  diversion  of  customers  by  reason  of  the  erection  of 
a  viaduct,^'  or  for  the  destruction  of  a  grade  switch-track  connection  from 
the  property  to  a  railroad,  caused  by  the  elevation  of  the  railroad  tracks 
in  a  case  where  the  railroad  company  was  under  no  legal  obligation  to 
maintain  such  connection.'^  An  owner  of  property  which  is  taken  or  dam- 
aged is  not  entitled  to  have  compensation  fixed  with  reference  to  his 
religious  beliefs''  or  matters  of  a  sentimental  nature.*^ 


Taking  of  property  under  police  power.  Regulations  under  the  police 
power  to  promote  and  safeguard  the  health,  safety,  morals  or  general 
welfare  of  the  public  which  govern  and  restrict  the  use  of  property  do 
not  constitute  a  taking  or  damaging  for  which  compensation  may  be  had 
under  this  section.  Regulation  of  this  character  may  destroy  the  use  and 
value  of  property  and,  in  cases  of  necessity,  may  even  destroy  the  property 
itself  when  its  continued  existence  constitutes  a  menace  to  the  public. 
Police  legislation  is  directed  against  property  and  the  uses  of  property 
which  are  deemed  harmful  to  society  and  it  operates  by  prohibiting  the  use 
or  destroying  the  property.  No  such  element  enters  into  a  taking  under  the 
power  of  eminent  domain.  There  is  simply  an  appropriation  of  property 
or  the  use  of  property  for  public  purposes.  (See  discussion  article  2,  sec- 
tion 2,  subheading,  "Legality  of  purpose  and  appropriateness  of  a  particular 
measure  to  effect  that  purpose.") 


Just  compensation — where  part  of  a  tract  is  taken.  Where  a  part  only 
of  a  tract  has  been  taken,  the  part  not  taken  may  be  specially  damaged  or 
specially  benefited.  In  determining  whether  the  effect  of  the  improvement 
upon  the  remaining  parcel  is  one  of  special  damage  or  of  special  benefit, 
the  elements  of  special  benefit  arising  from  the  improvement  may  be  set 
off  against  the  elements  of  special  damage  to  the  part  not  taken.  This 
construction  was  placed  upon  the  constitutional  provisions  of  1818,®^  1848,"=^ 
and  the  same  construction  has  been  placed  upon  this  section  in  the  con- 
stitution of  1870.«' 

If  the  special  benefits  to  the  part  not  taken  exceeded  the  elements  of 
special  damage  to  the  part  not  taken  under  the  constitutions  of  1818  and 
1848,  the  excess  could  be  set  off  against  the  market  value  of  the  part 
taken  even  though  the  effect  of  such  set  off  was  to  deprive  the  owner  of  all 
right  to  pecuniary  compensation  for  the  part  taken.*"  This  rule  was  changed 


53  1.  C.  'R.  R.  Co.  V  School  Trustees.  212  III.  406  (1904);  Aldrich  v  Metro- 
politan West  Side  El.  R.  R.  Co..  195  111.   456    (1902). 

MC.   &   M.   Electric   R.    R.   Co.   v   Mawman.    206    111.    182    (1903). 

esRigney  v   City  of  Chicago,    102    111.    64    (1882). 

Boprazer  v  City  of  Chicago,    186   111.    480    (1900). 

B'Hohmann  v  City  of  Chicago,  140  111.  226  (1892);  City  of  Chicago  v  Spoor, 
190  111.  340    (1901). 

53  Otis  Elevator  Co.  v  City  of  Chicago.   263  111.   419    (1914). 

s'Dowie  v  C.  W.  &  N.  S.  Ry.  Co.,   214  111.  49    (1905). 

'^'City  of  Decatur  v  Vaughan,  233  111.  50   (1908). 

estate    v   Evans.    3    111.    208    (1840). 

«2A.  &  S.  R.  R.  Co.  V  Carpenter.  14  111.  190  (1852);  Curry  v  Town  of  Mt. 
Sterling,    15    111.    320    (1853). 

cspage  V  C.  M.  &  St.  P.  Ry.  Co..  70  111.  324  (1873);  DuPont  v  Sanitary  Dis- 
trict. 203  111.  170  (1903);  E.  M.  &  S.  W.  R.  R.  Co.  v  Everett.  225  111.  529  (1907); 
Oil  Belt  Ry.  Co.  v  Lewis,   259  111.   108    (1913). 

e*  State  v  Evans,  3  111.  208  (1840);  A.  &  S.  R.  R.  Co.  v  Carpenter.  14  111. 
190    (1852). 


54  Article  2,  Section  13 

by  a  statute  in  1852  which  forbade  the  setting  off  of  benefits  against  the 
value  of  the  part  taken.  The  constitutionality  of  this  act  apparently  was 
not  questioned.®^ 

It  has  been  held  that  the  effect  of  the  constitution  of  1870  has  been  to 
prevent  the  setting  off  of  benefits  to  the  part  not  taken  against  the  value 
of  the  part  taken.  The  owner  is  entitled  to  receive  compensation  for  the 
part  taken  irrespective  of  benefits  to  the  remaining  land.""  Where  the  effect 
of  the  taking  of  part  has  been  to  damage  the  part  not  taken,  the  whole 
is  held  to  constitute  a  taking.  (See  discussion  preceding  subheading,  "What 
constitutes  a  taking".)  Cities,  towns,  villages,  drainage  districts  and  park 
districts  are  permitted  to  levy  special  .assessments  for  local  improvements. 
(See  discussion  article  9,  section  9,  subheading,  "Special  assessments  and 
special  taxation  for  local  improvements,"  center  subheading,  "Municipalities 
that  may  be  authorized  to  make  local  improvements  by  special  assessments 
or  special  taxation".)  By  the  levy  of  special  assessments,  these  municipali- 
ties may,  in  effect,  set  off  special  benefits  received  by  property  not  taken 
against  the  compensation  required  to  be  made  for  property  taken.  In 
other  words,  they  may  recoup  the  compensation  they  are  obliged  to  make 
for  property  taken  for  a  local  improvement,  to  the  extent  that  such  local 
improvement  benefits  specially  property  not  taken.  The  effect  is,  therefore, 
a  discrimination  against  the  state  and  those  municipalities  which  are  not 
authorized  to  levy  special  assessments,  in  making  compensation  for  prop- 
erty taken   for  local  improvements. 


Just  compensation — where  no  property  is  taken.  Under  the  constitu- 
tions of  1818  and  1848  there  was  no  right  to  compensation  for  damage  which 
did  not  amount  to  a  taking.  The  introduction  of  the  word  "damage"  in  the 
constitution  of  1870  gave  a  constitutional  right  to  compensation  therefor. 
Recovery  is  allowed  for  special  damage,  as  distinguished  from  general 
damage  such  as  is  sustained  by  the  community  as  a  whole,  if  such  damage 
arises  out  of  a  violation  of  some  right.  In  determining  whether  the  owner 
is  entitled  to  any  compensation,  special  benefits,  but  not  general  benefits 
may  be  taken  into  consideration,  i.  e.,  special  benefits  may  be  set  off  against 
special  damage."  If  the  special  damage  exceeds  the  special  benefits,  com- 
pensation must  be  in  money."**  Compensation  need  not  be  made  before  the 
infiiction  of  the  damage  and  an  injunction  to  restrain  the  prosecution  of  the 
work  will  be  denied.^® 


Just  compensation  for  property  taken — medium  and  time  of  payment. 
For  an  actual  taking,  the  owner  is  entitled  to  be  paid  in  money  and  he 
cannot  be  compelled  to  accept  orders  or  other  means  of  obtaining  pay- 
ment which  he  may  be  obliged  to  enforce  by  legal  proceedings.""  Actual 
payment  is  a  condition  precedent  to  the  right  to  take."  Equity  will  enjoin 
a  taking  until  compensation  is  made."^  But  the  condemning  authority  may 
enter  into  the  temporary  possession  of  the  premises  pending  an  appeal  from 


"''Hayes  v  O.  O.  «&  F.  'R.  V.  R.  R.  Co..  54  111.  373  (1870);  P.  P.  8c  J.  R.  R. 
Co.  V  Black.   58  111.  33    (1871):  P.  P.  &  J.   R.   R.  Co.  v  Laurie,   63   111.   264    (1872). 

«°  Carpenter  v  Jennings,  77  111.  250  (1875);  Harwood  v  City  of  Bloomington, 
124  111.  48  (1888);  Washingrton  Ice  Co.  v  City  of  Chicago.  147  111.  327  (1893); 
People    V    Burrall,    258    111.    509    (1913). 

"City  of  Shawneetown  v  Mason.  82  111.  337  (1876);  City  of  Elgin  v  Eaton, 
83  111.  535  (1876):  City  of  Chicago  v  Lonergan.  196  111.  518  (1902);  Brand  v 
Union  Elevated  R.  R.  Co.,  258  111.  133  (1913);  Brand  v  Union  Elevated  R.  R.  Co., 
238   U.    S.   586    (.1915). 

«8L.   S.  &  M.   S.   Ry.   Co.   v  B.   &  O.   R.   R.   Co..    149   111.    272    (1894). 

69  Stetson  V  C.  &  E.  R.  R.  Co..  75  111.  74  (1874);  Doane  v  Lake  St.  El.  R.  R. 
Co.,   165   111.   510    (1897);   Childs  v  City  of  Chicago.   279    111.   623    (1917). 

™  Caldwell    v   Commissioners   of  Highways.    249    111.    366    (1911). 

71  Caldwell    v   Commissioners   of  Highways.    249    111.    366    (1911). 

'^Commissioners  v  Durham,   43    111.   86    (1867). 


Article  2,  Section  14  55 

the  condemnation  proceeding  upon  giving  the  required  bcmd."  The  At- 
torney General  has  rendered  an  opinion  holding  that  the  state  may  take 
property  without  actual  prepayment,  and  that  an  appropriation  duly  passed 
by  the  General  Assembly  probably  would  be  sufficient."' 


Respective  province  of  tlie  court,  the  General  Assembly  and  the  con- 
demning authority.  The  construction  of  all  words  in  the  enainent  domain 
clause  is  for  the  court.  A  statutory  declaration  as  to  what  constitutes  a 
public  use  does  not  bind  the  court."  The  question  of  the  propriety  of  dele- 
gating the  power  of  eminent  domain  and  the  procedure  for  its  exercise  is 
for  the  General  Assembly.^®  The  question  as  to  the  necessity  for  a  particu- 
lar taking  is,  in  the  first  instance,  for  the  condemning  authority  which  is 
vested  with  a  relatively  wide  discretion,  but  is  subject  to  review  by  the 
courts  in  case  of  an  abuse  of  that  discretion." 


Section  14.  No  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts,  or  making  any  irrevocable  grant  of  special  priv- 
ileges or  immunities,  shall  be  passed. 


Ex  post  facto  laws.  The  prohibition  against  ex  post  facto  laws  is 
limited  to  legislation  relating  to  criminal  matters,^^  which  operates  to  the 
possible  prejudice  of  an  accused  person  as  to  an  act  committed  prior  to  its 
passage.  The  indeterminate  sentence  law  can  be  given  a  prospective  effect 
only  since,  if  applied  retroactively,  it  prejudices  the  accused  by  abolishing 
his  right  to  have  the  jury  fix  the  punishment.'*  A  statute  increasing  a 
penalty  of  $50.00  to  one  not  exceeding  $100.00  against  railroad  companies 
for  failing  to  sound  a  bell  or  whistle  at  street  crossings  is  void  as  to  of- 
fenses committed  prior  to  its  passage.^"  But  the  General  Assembly  may 
reduce  a  penalty  as  to  offenses  already  committed.^^  However,  when  it  is 
doubtful  whether  the  penalties  of  a  new  law  are  more  severe  than  under 
the  prior  law,  it  has  been  said  that  the  second  act  is  not  ex  post  facto,  but 
the  defendant  will  be  permitted  to  select  which  act  shall  be  applied  to  his 
case.*^  A  law  prohibiting  the  re-marriage  of  divorced  persons  within  a 
certain  period  is  not  ex  post  facto.^^ 


Impairment  of  contracts.  This  section  prohibits  legislation  impairing 
the  obligations  of  contracts  which  have  been  entered  into  prior  to  the  pas- 
sage of  the  legislation.  But  there  is  no  constitutional  objection  to  a  law 
regulating    future    contracts.^^      Thus    the    General    Assembly    may    require 


^3  Mitchell    v    I.    &    St.    L.    R.    R.    Co.,    68    111.    286    (1873). 

'^  Report  Attorney   General,   1917-18,   p.   729. 

■^Nesbitt  V  Trumbo.  39  111.  110  (1866):  Gaylord  v  Sanitary  District.  204 
111.    576     (1903). 

'"City  of  Chicago  v  Lehmann,  262  111.  468  (1914);  Gillette  v  Aurora  Ry.  Co., 
228    111.    261    (1907). 

"Burke  v  Sanitary  District,  152  111.  125  (1894);  Village  of  Depue  v  Bansch- 
back.  273  111.  574  (1916):  P.  F.  W.  &  C.  Ry.  Co.  v  Sanitary  District.  218  111. 
286    (1905):    C.   &  W.   I.   R.   R.   Co.  v   City   of   Chicago.    255    111.   136    (1912). 

■^^  Coles  V   County  of  Madison.    1   111.    154    (1826). 

''Johnson  v  People,   173   111.   131    (1898). 

8»  Wilson  V  O.   &  M.    Ry.   Co.,    64   111.    542    (1872). 

81 C.   &  A.   R.   R.   Co.   v  Adler,    56    111.    344    (1870). 

82  Kossakowski   v  People,   177   111.   563    (1899). 

83  01sen   v   People,    219    111.    40    (1905). 
**Burdick   v   People,    149    111.   600    (1894). 


56  Article  2,  Section  14 

that  deeds  and  mortgages  to  be  valid  shall  be  acknowledged."  This  section 
will  not  protect  against  impairment  a  contract  to  do  an  act  prohibited  by  a 
bill  passed  by  the  General  Assembly  and  signed  by  the  Governor,  but  not 
yet  in  full  effect  as  a  law  at  the  time  the  contract  was  made.^** 

The  Supreme  Court  has  held  that  a  court  may  not  by  judicial  decision 
impair  the  obligation  of  a  contract  any  more  than  the  General  Assembly 
may  by  statute. '''  This  view  is  based  on  what  is  probably  an  erroneous 
conception  of  the  holding  of  the  United  States  Supreme  Court  which  court 
has  later  expressly  held  (along  with  many  state  courts)  that  the  constitu- 
tional provision  prohibits  impairment  of  contracts  by  action  of  a  legislative 
character  only.** 

A  law  may  provide  for  its  adoption  by  the  vote  of  the  electorate  in 
particular  districts  and  also  for  its  subsequent  rejection  in  the  same  man- 
ner. A  vote  discarding  the  law  is  practically  the  same  as  to  the  district 
affected,  as  a  repeal  of  the  law  by  the  General  Assembly.  Contracts,  there- 
fore, made  while  such  a  law  is  in  force  will  be  protected  against  impair- 
ment resulting  from  the  rejection  of  the  law  by  the  action  of  the  district. 
Thus  it  was  held  that  the  obligation  of  a  contract  for  the  construction  of 
a  building  in  a  school  district  under  an  act  adopted  by  vote,  could  not  be 
impaired  by  a  subsequent  election   discontinuing  the  school  district.^' 

Contracts  made  by  the  state  are  within  the  protection  of  this  consti- 
tutional provision  and  may  not  be  impaired  by  legislation  seeking  to  abro- 
gate or  change  them.  Thus  where  a  contract  to  do  certain  printing  for 
the  state  specified  payment  in  state  paper  "at  its  specie  value"  the  Gene- 
ral Assembly  may  not  fix  an  arbitrary  higher  valuation  for  such  payment.*** 
In  a  number  of  cases  relating  to  franchises  of  special  privileges  which 
were  granted  by  the  state  to  corporations  or  individuals  prior  to  the  adop- 
tion of  the  constitution  cf  1870,  it  was  held  that  such  franchises  constituted 
contracts  which  were  not  subject  to  impairment  by  subsequent  legislation. 
As  a  result  of  these  decisions,  subsequent  grants  were  made  subject  by  ex- 
press terms,  to  the  power  reserved  to  the  state  to  alter,  amend  or  repeal. 
Irrevocable  grants  of  special  privileges  or  immunities  are  prohibited  in 
the  constitution  of  1870  by  the  last  clause  of  this  section.  (See  discussion 
subsequent  subheading).  A  railroad  having  the  right  under  its  charter 
to  use  and  sell  its  lands  as  it  deemed  expedient  cannot  be  compelled  by 
statute  to  dispose  of  them  within  a  limited  period  at  a  fixed  price,  particu- 
larly when  the  land  in  question  had  been  placed  as  security  for  bonds  issued 
by  the  railroad  company,  since  then  the  statute  operates  to  impair  not 
only  the  charter  rights  but  also  the  obligations  of  the  bonds.^^  So  the  right 
to  maintain  a  toll  road  under  a  charter  may  not  be  impaired  by  the  annexa- 
tion to  a  city  of  the  land  enclosing  it.®-  After  a  county  has  been  authorized 
to  subscribe  for  stock  in  a  railroad  company  and  levy  taxes  for  that  pur- 
pose by  the  charter  of  the  company  and  has  made  a  subscription  and  issued 
its  bonds  therefor,  a  subsequent  act  limiting  the  taxing  power  or  the  means 
to  meet  the  bonds,  impairs  the  obligation  of  these  contracts.®^  But  it 
has  been  held  that  a  railroad  charter  amendment  for  the  extension  of  the 
road,  consolidation  with  other  roads  and  the  assumption  of  new  and  in- 
creased responsibilities,  does  not  impair  the  validity  or  obligation  of  con- 
tracts for  subscription  of  stock  in  the  corporation,®'  so  long  as  the  changes 
in  the  charter  are  merely  auxiliary  to  the  original  design  and  not  a  fun- 


ssParrott  v   Kumpf,    102   111.    423    (1882). 

s«  Dunne  v  County  of  "Rock  Island,   283  111.  628    (1918). 

87  Harmon   v   Auditor   of   Public   Accounts.    123    111.    122    (1887). 

88  Bacon  v  Texas.  163  U.  S.  207    (1896). 
s'Chalstran   v  Board   of  Education,    244   111.    470    (1910). 
»«Blackwell    v   Auditor   of   Public   Accounts.    1    111.    196    (1826). 
91  People   v   Ketchum,    72    111.    212    (1874). 

93  City  of  Belleville   v   Turnpike  Co..    234    111.   428    (1908), 
93P.   D.  &  E.   Ry.   Co.    V  People,    116   111.   401    (1886). 

»*Banet   v  A.   &   S.   R.   R.   Co.,    13    111.    504    (1851);    T.    H.    &    A..    R.   R.   Co.    v 
Earp,    21    111.    291    (1859). 


Article  2,  Section  14  57 

damental  change  like  an  amendment  which  divides  the  original  project  into 
three  parts.^^ 

The  purchase  of  property  at  tax  sales  constitutes  a  contract,  with 
rights  and  obligations  which  may  not  be  taken  away  or  abridged  by  legis- 
lation. Thus  if  by  the  purchase,  the  buyer  secures  the  right  to  the  title 
or  a  redemption  in  specie,  an  act  which  authorizes  the  owner  to  redeem  in 
United  States  treasury  notes  is  void.®'  The  contract  of  the  sureties  on  a 
collector's  bond  is  so  materially  altered  by  an  act  extending  the  time  for 
the  collector's  final  settlement  as  to  release  them  from  liability.*'  The 
General  Assembly  has  no  power  to  make  the  purchasers  of  the  franchise 
and  property  of  a  railroad  corporation  liable  for  the  debts  of  the  old  cor- 
poration by  a  law  enacted  subsequently  to  the  sale,  since  by  the  sale  certain 
rights  are  obtained  which  cannot  be  taken  away.*" 

Grants  by  municipalities  to  public  utility  companies  giving  privileges 
in  the  use  of  streets,  are  not  franchises  but  licenses  which  upon  accept- 
ance become  contracts  which  can  be  rescinded  or  revoked  only  for  cause.** 
And  even  where  the  grant  is  improperly  given  by  resolution  instead  of  by 
ordinance  if  the  licensee  has  accepted  and  acted  upon  the  grant  with  the 
tacit  approval  of  the  municipality,  it  is  a  contract  not  subject  to  revocation 
or  impairment.'^ 

Anticipation  warrants  are  charges  against  a  tax  and  are  not  contracts 
of  the  city  which  are  protected  by  this  section  against  a  law  which  dimin- 
ishes the  taxing  power  of  the  city.^  Nor  is  the  election  and  induction  of 
a  person  into  a  public  office  a  contract  within  the  protection  of  the  con- 
stitution,"* nor  the  right  to  participate  in  a  police  pension  fimd.*  An  act 
passed  to  validate  a  mortgage  defectively  executed  cannot  be  said  to 
impair  any  contract  rights  since  its  effect  is  merely  to  make  obligatory  the 
intention  of  the  contracting  parties.^ 

When  a  public  municipal  corporation  acting  outside  its  governmental 
character  for  purposes  of  private  advantage,  has  contracted  with  the  state, 
its  position  is  analogous  to  individuals  or  private  corporations  whose  con- 
tracts may  not  be  impaired  or  altered  by  the  state.  But  its  acts  in  its 
public  or  governmental  capacity  are  performed  as  agent  for  the  state  and 
this  section  does  not  prevent  complete  control  as  to  such  matters  by  the 
state.®  Thus  a  grant  of  money  for  internal  improvements  to  counties 
without  railroads  may  be  withdrawn  by  the  state  at  any  time  before  it  has 
been  expended,'  or  the  General  Assembly  may  properly  direct  the  payment 
of  money  due  school  townships  in  other  than  gold  and  silver.^ 

A  municipality  may,  with  the  consent  of  the  other  party  to  a  contract, 
set  aside  an  agreement  for  service  and  substitute  therefor  a  new  agreement 
fixing  new  rates  for  service,  and  such  action  will  not  be  subject  to  objection 
as  an  impairment  of  the  contract  rights  of  the  residents  of  the  municipality 
to  receive  service  at  the  original  rates.* 

The  contract  rights  of  the  individual,  like  all  property  rights,  are  not  ab- 
solute but  are  held  subject  to  certain  paramount  rights  of  the  state  and  this 
section  is  not  construed  to  secure  rights  under  contracts  at  the  expense  of  the 
necessary  sovereign  powers  which  protect  and  secure  the  general  welfare. 
All  contracts  whether  made  by  the  state  or  individuals  are  subject  to  be  in- 

95  Supervisors  of  Fult.  m  County  v  M.  &  W.   Ry.  Co..   21   IlL   338    (1859). 
*5  People   V   Riggs,    56    111.    483    (1870). 
97  Davis    V   People,    6    111.    409    (1844). 

9s  Hatcher  v  T.  W.  &  W.   R.  R.  Co.,   62   111.  477    (1872). 

!^J  Chicago  Municipal  Gas  Light  Co.  v  Town  of  Lake,  130  111.  42  (1889);  City 
of  Belleville  v  Citizen's  Horse  Ry.  Co..  152  111.  171  (1894);  People  v  Central 
Union    Tel.    Co.,    192    111.    307    (1901). 

iVillaere   of   London   Mills    v    White,    208    111.    289    (1904). 

3  Booth  v  Opel,   244   111.   317    (1910). 

3  Donahue   v   County  of  Will,    100    111.   94    (1881). 

*Beutel    v   Foreman,    288    111.    106    (1919). 

5  Steg-er  v   Traveling  Men's   Bldg.   Assn..    208   111.   236    (1904). 

8  People    v    Power,    25    111.    187     (1860). 

"County  of  Richland   v  County  of  Lawrence.   12   111.   1   (L85i)). 

8  Bush    V    Shipman.    5    111.    186    (1843). 

» People   V  Chicago  Tel.   Co.   245   111.   121    (1910). 


58  Article  2,  Section  14 

terfered  with  by  subsequent  statutes  enacted  in  the  exercise  of  the  police 
power. 

The  following  regulations  for  the  operation  of  trains  have  been  sus- 
tained as  valid  police  measures  though  their  effect  was  to  limit  or  alter  rights 
secured  by  charter  from  the  state;  requiring  the  sounding  of  warnings  at 
road  and  street  crossings,^"  and  the  fencing  of  right-of-ways,"  the  stopping  of 
passenger  trains  at  county  seats,"  and  fixing  reasonable  rates  for  transporta- 
tion and  preventing  discrimination  in  rates."  A  railroad  company  may  be 
compelled  to  secure  a  permit  to  lay  a  side  track  on  its  right-of-way  across  a 
street  crossing."  With  regard  to  ordinances  relating  to  the  operation  of 
street  railways  in  the  city  of  Chicago,. it  was  held  that  they  constituted  bind- 
ing contracts  in  so  far  as  their  provisions  related  to  matters  other  than 
those  affecting  the  public  safety,  welfare,  comfort  or  convenience — such  as 
the  division  of  net  receipts  with  the  city  and  an  option  of  purchase  to  the 
city.  But  as  to  matters  properly  within  the  purview  of  the  police  power,  the 
General  Assembly  retains  the  power  to  regulate  and  control.^^  When  a  char- 
ter to  a  railroad  corporation  merely  requires  the  corporation  in  crossing  a 
street  or  road  with  its  tracks,  to  restore  the  road  or  street  to  its  former 
state  of  usefulness,  the  railroad  corporation  may  not,  under  guise  of  police 
regulation,  be  made  liable  for  the  maintenance  of  the  paving  upon  a  street 
in  a  subway  beneath  its  tracks.'" 

The  exercise  of  rights  conferred  by  charter  on  an  insurance  company  is 
subject  to  the  power  of  the  state  to  enact  a  police  measure  providing  for  the 
dissolution  of  such  company  if  upon  examination  its  financial  condition 
makes  the  continued  acceptance  of  risks  hazardous,^'  and  the  General  Assem- 
bly may  provide  that  an  insurance  company  failing  to  transact  business  for 
one  year  shall  be  deemed  extinct.'^  An  amendment  to  the  city  charter  of 
Chicago  may  operate  to  annul  a  section  of  the  charter  of  Chicago  University 
which  prohibited  the  sale  of  intoxicating  liquor  within  one  mile  of  the  in- 
stitution.'® Rates  fixed  by  municipalities  by  contract  or  ordinance  may  be 
changed  by  subsequent  legislation  since  the  right  to  prescribe  reasonable 
rates  as  a  part  of  the  police  power  cannot  be  divested  or  bargained  away.'" 

In  a  recent  decision  of  the  Supreme  Court  it  was  held  that  a  railroad 
company  was  prohibited  by  the  public  utilities  act  of  1913  from  furnishing 
free  transportation  under  a  prior  contract  by  the  terms  of  which  the  vendor 
of  certain  property  was  to  receive  free  transportation  as  part  consideration 
for  property  sold  to  the  railroad  company.'^  Shortly  after  this  decision,  the 
court  held  that  the  public  utilities  ^ct  did  not  impair  or  annul  a  contract 
under  which  free  electrical  power  was  the  consideration  for  the  transfer  of 
certain  property.-'  And  in  an  earlier  case  a  statute  requiring  railroads  to 
fence  their  right-of-way  was  not  permitted  to  impair  rights  under  a  contract 
authorized  by  law  by  which  the  owner  of  adjoining  land  agreed  to  build  and 
maintain  a  fence  and  in  the  event  of  failure  so  to  do,  the  railroad  company 
was  not  to  be  liable  for  damages  to  stock  of  such  owner.^^ 


'«G.  &  C.  U.  R.  R.  Co.  V  Loomis.  IS  111.  .548  (1852);  I.  &  St.  I..  R.  R.  Co.  v 
Blackman,  63  111.  117   (1872);  Venner  v  Chicago  City  Ry.  Co.,  246  111.  170   (1910). 

"O.  &  M.  R.  R.  Co.  V  McClelland,  25  111.  140  (1860);  G.  &  C.  U.  R.  R.  Co.  v 
Crawford.    25    111.    529    (1861). 

12  C.  &   A.   R.   R.   Co.   v   People.    105   111.    657    (ISS."?). 

i3Ruggles  V  People,  91  111.  256  (1878);  C.  &  A.  R.  R.  Co.  v  People,  67  111.  11 
(187*1):  C.   B.  &  O.  R.   R.   Co.  v  Jones.   149   111.    361    C1894). 

"P.  F.  W.  &  C.  Ry.  Co.  V  City  of  Chicago,  159  111.  369   (1896). 

15  City  of  Chicago  v  O'Connell.  278  111.  591  (1917);  (recently  affirmed  by 
United  States   Supreme  Court). 

1"  People   V  I.   C.   R.    R.   Co..   235   111.    374    (1908). 

"Ward  V  Farwell,  97  111.  593  (1881):  Chicago  Life  Ins.  Co.  v  Auditor.  101 
111.   82    (1881). 

18  Yates  V   People,    207   111.    316    (1904). 

wDingman   v    People,    51    111.    277    (1869). 

»>Freeport  Water  Co.  v  City  of  Freeport.  186  111.  179  (1900):  City  of  Dan- 
ville V  Danville  Water  Co.,  178  111.  299  (1899);  Rogers  Park  Water  Co.  v  Fergus, 
178    111.   571    (1899). 

2iHite  v  C.   I.  &  W.   R.   R.   Co..   284   111.    297    (1918). 

23  Schiller  Piano  Co..   v  Northern  Utilities  Co..   288   111.   580    (1919). 

23  Lynch   v    B.    &   O.    S.    W.    R.    R.    Co.,    240    111.    567    (1909). 


Article  2,  Section  14  59 

Contract  rights,  like  all  property  rights,  are  subject  to  eminent  domain 
and  the  state  may  for  public  use  and  by  making  compensation  therefor,  im- 
pair and  destroy  rights  granted  by  charter  from  the  state.^"*  See  discussion 
article  11,  section  14).  The  state  may  in  the  exercise  of  its  taxing  power 
affect  rights  under  contracts  between  individuals.  Thus  under  a  drainage 
act,  assessments  may  be  levied  on  property  and  a  lien  given  for'  such  taxes 
which  is  superior  to  the  liens  of  existing  encumbrances.-'  But  valid  con- 
tracts made  by  special  grants  by  the  state  or  its  subdivisions  under  the  con- 
stitution of  1848  which  exempted  property  from  taxation,  are  protected 
against  impairment  by  subsequent  legislation  by  the  provision  of  this  sec- 
tion.-" (See  discussion  article  9,  section  3,  subheading,  "Effect  of  the  ex- 
emption provisions  in  special  charters  granted  prior  to  1870.") 

It  has  been  uniformly  held  that  a  specific  method  of  enforcing  the  obliga- 
tion of  a  contract  is  not  a  part  of  the  obligation  and  therefore  the  General 
Assembly  may  regulate  or  change  the  remedies  for  the  enforcement  of  ex- 
isting contracts  so  long  as  such  change  in  the  extent  or  nature  of  existing 
remedies  does  not  impair  the  substantiye  rights  and  interests  under  such  con- 
tracts. A  change  in  the  remedy  if  it  goes  to  the  extent  of  abridging  or  alter- 
ing substantive  rights  is  just  as  much  an  impairment  within  the  prohibi- 
tion of  this  section  as  a  direct  violation  of  the  contract.-^  A  law  which  re- 
quires that  property  sold  under  mortgage  foreclosure  be  appraised  and  sold 
for  at  least  two-thirds  of  the  valuation  fixed  was  sustained  as  to  rights 
accrued  under  prior  contracts  by  the  Illinois  Supreme  Court,^^  but  the  deci- 
sion was  reversed  by  the  United  States  Supreme  Court.^'  So  an  act  which 
takes  away  all  existing  remedy  leaving  no  redress  impairs  the  validity  of  an 
existing  contract  as  much  as  if  it  changed  the  terms.^"^ 

The  following  measures  have  been  held  to  change  the  remedy  or  pro- 
cedure only  and,  therefore,  to  be  valid  even  as  to  prior  contracts:  a  law  per- 
mitting a  creditor  of  a  bank  to  proceed  to  judgment  against  a  stockholder 
without  waiting  for  execution  against  the  bank; ^Uhe  burnt  records  act  which 
abolished  a  presumption  as  to  the  regularity  of  proceedings  essential  to  the 
validity  of  tax  deeds  ;^'  a  statute  permitting  redemption  from  sales  under 
decrees  to  enforce  mechanic's  liens  ;^^  a  statute  establishing  a  rule  of  evi- 
dence that  the  statement  of  the  county  collector  in  applying  for  judgments 
for  taxes  shall  be  prima  facie  evidence  of  the  regularity  of  the  assessment 
and  levy  of  the  taxes  ;^*  a  statute  making  unnecessary  the  establishing  a  de- 
vastavit before  bringing  suit  on  a  guardian's  bond;^'  a  requirement  as  to  cer- 
tain steps  to  be  taken  by  tax  purchasers  in  giving  notice  to  the  owners  of 
property  sold;^"  a  law  giving  to  owners  assessed  for  local  improvements  the 
right  of  jury  trial  on  question  of  benefits  ;=*'  a  statute  permitting  the  forfeit- 
ure of  a  lease  by  service  of  a  simple  demand  notice  instead  of  the  common  law 
method  of  forfeiture;'^  and  a  statute  changing  the  procedure  for  condemna- 
tion of  property  by  a  railroad  company.'''  Statutes  limiting  the  time  within 
which  the  obligations  of  a  contract  may  be  enforced  or  changing  the  limita- 


2*  Mills  V  County  of  St.  Clair.  7  111.  197  (1845);  I.  &  M.  Canal  v  C  &  R.  I. 
R.  R.  Co..   14  111.  314   (1853);  M.  C.  Ry.  Co.  v  C.  W.  D.  Ry.  Co..  87  111.  317    (1877). 

-•W.   E.   Rv.   Co.   v   Commissioners  of  Drainapre  District,   134   111.    384    (1890), 

snparmelee  v  City  of  Chicago,  60  111.  267  (1871);  People  v  Soldiers'  Home  & 
Baptist  Theological  Union,  95  111.  561  (1880);  Northwestern  University  v  Peo- 
ple, 99  U.  S.  309  (1878);  reversing  Northwestern  University  v  People,  80 
111.   333    (1875). 

"^Fisher   v   Green.    142    111.    80    (1892). 

2«  Williams  v  Waldo,  4  111.  264   (1841);  Delahay  v  McConnel,  5  111.  157   (1842). 

^'McCracken   V    Hayward.    2    Howard    (U.    S.)    608    (1844). 

3»  Bruce   v   Schuyler,    9   111.    221    (1847). 

«i  Smith   V   Bryan,    34    111.    364    (1864). 

''-Gage    V   Caraher,    125    111.    447    (1888). 

ssTempleton  v   Home,    82    111.    491    (1876). 

3*Burbank   v    People.    90    111.    554    (1878). 

«^Winslow   V    People.    117    111.    152    (1886). 

36  Gage  V   Steward.   127   111.   207    (1889). 

3T  Palmer   v   City   of   Danville.    166    111.    42    (1897). 

«« Woods    V    Soucy,    166    111.    407    (1897). 

39  C.   B.   &   Q.    Ry.    Co.   v   Abbott.    215    111.    416    (1905). 


60  Article  2,  Section  15 

tion  period  have  been  sustained  as  to  existing  contracts  or  causes  of  action  so 
long  as  a  reasonable  period  is  afforded  for  the  assertion  of  the  right  before 
the  action  is  barred/'  A  law  which  takes  away  the  right  to  sue  on  causes 
barred  by  limitation  statutes  in  the  state  where  they  accrued,  does  not  vio- 
late the  constitutional  provision  since  the  obligation  of  such  contracts  is  al- 
ready gone  by  force  of  the  foreign  limitation  statute/^ 


Irrevocable  grants  of  special  privileges  or  immunities.  Section  22  of 
article  4  provides  that  "the  General  Assembly  shall  not  pass  local  or  special 
laws  .  .  .  granting  to  any  corporation,  association,  or  individual  any 
special  or  exclusive  privilege,  immunity  or  franchise".  The  prohibition  is 
directed  expressly  to  the  General  Assembly  and  it  has  been  held  that  it  does 
not  apply  to  licenses  or  contracts  created  by  municipalities.^-  Section  14  of 
article  11,  however,  says  that  "no  law  impairing  the  obligation  of  contracts, 
or  making  any  irrevocable  grant  of  special  privilege  or  immunities,  shall  be 
passed."  The  prohibition  against  "impairing  the  obligation  of  contracts"  has 
been  applied  to  both  municipal  and  state  action.  But  the  same  word  "law" 
with  its  second  qualifying  phrase,  "making  any  irrevocable  grant  of  special 
privilege  or  immunities,"  has  been  construed  not  to  apply  to  municipali- 
ties.*^ The  court  erroneously  cites  the  decision  based  on  section  22  of  article 
4.  But  the  court,  in  holding. that  the  municipal  ordinance  in  question  is  not 
a  law  which  makes  an  irrevocable  grant  of  special  privilege  or  immunities, 
does  not  base  its  opinion  wholly  on  the  construction  of  the  word  "law"  but 
also  on  the  ground  that  the  grant,  although  not  for  a  definite  term,  was  lim- 
ited to  the  life  of  the  corporation  receiving  it  and  was  therefore  not  an  irrev- 
ocable grant.  The  prohibition  against  an  irrevocable  grant,  according  to  the 
construction  placed  upon  it  by  the  court,  forbids  a  grant  in  perpetuity  but  not  a 
grant  for  a  limited  term  of  years  incapable  of  being  revoked  by  the  state." 


Section  15.    The  military  shall  be  in  strict  subordination  to  the 
civil  power. 


The  calling  out  of  the  militia  to  quell  riotous  conditions  does  not  sus- 
pend the  functions  of  the  civil  authorities  but  the  military  authority  is 
merely  in  aid  of  the  civil  authorities.  Consequently  civil  officers  retain  all 
their  customary  powers  and  duties.*^ 

When  it  becomes  necessary  for  the  state  to  send  aid  to  the  civil 
authorities  to  suppress  violence  and  execute  the  law,  the  civil  authorities, 
acting  as  the  representatives  of  the  state  and  exercising*  governmental 
functions,  are  supreme.  Their  authority  over  the  militia,  however  is  not 
absolute  but  is  limited  to  directing  specific  acts  to  be  performed.  As  to 
the  mode  and  manner  of  accomplishing  the  act  ordered  to  be  done,  the 
militia  acts  independently  of  the  civil  authorities  and  is  answerable  to  the 
Governor.*® 

It  has  been  held  by  the  Attorney  General  that  a  member  of  the  state  mili- 
tia is  subject  to  arrest  by  the  civil  authorities  for  treason,  felony  or  breach  of 
the  peace,  even  when  engaged  in  active  service  for  the  state  and  the  fact 
of  court  martial  and  punishment  by  the  military  authorities  does  not  bar 


« Bradley  v   Lightcap,   201   111.    511    (1903). 
«Hyman    v    Bayne,    83    111.    256     (1876). 
4^  Chicago   City  Ry.   Co.  v   Story,   73   111.   541    (1874). 
"People  v  Central  Union  Tel.   Co.,   232   111.   260    (1908). 

^*St.    Clair    County    Turnpike    Co.    v    People.    82    111.    174     (1876):    People    v 
Central    Union    Tel.    Co.,    232    111.    260    (1908). 

*«  County  of  Christian  v  Merrigan,   191   111.   484    (1901) 
*«City   of   Chicago   v    Chicago   Ball    Club,    196    111.    54    (1902). 


Article  2,  Sections  16-18  61 

a  civil  trial  for  the  same  offense.*^     (For  the  constitutional  provisions  re- 
lating to  the  organization  of  the  militia,  see  article  12.) 


Section  16.  No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner ;  nor  in  time  of  war  ex- 
cept in  the  manner  prescribed  by  law. 


Section  17.  The  people  have  the  right  to  assemble  in  a  peace- 
able manner  to  consult  for  the  common  good,  to  make  known  their 
opinions  to  their  representatives,  and  to  apply  for  redress  of  griev- 
ances. 


Section  18.     All  elections  shall  be  free  and  equal. 


This  provisiDn  applies  to  all  elections  held  under  authority  of  law  at 
which  qualified  electors  may  vote,  including  primary  elections.^* 

Reasonable  safeguards  designed  to  maintain  the  purity  of  elections 
from  fraud,  such  as  requiring  an  unregistered  voter  to  furnish  two  affidavits 
in  support  of  his  right  to  vote  do  not  abridge  the  elective  franchise  or  violate 
this  section.^* 

The  constitutional  requirement  of  freedom  and  equality  of  elections 
prohibits  intimidation  and  improper  influences  and  requires  that  the  vote 
of  every  elector  shall  be  equal  in  its  influence  on  the  result  to  every  other 
vote,  but  it  does  not  demand  absolute  uniformity  of  regulation  in  all  parts 
of  the  state."'  But  a  law  which  permits  the  voting  of  electors  who  have 
resided  thirty  days  in  some  election  districts  but  not  in  other  portions 
of  the  state  destroys  the  freedom  and  equality  of  elections.'^  So  distinc- 
tions applying  to  Cook  County  alone  not  justified  by  the  difference  in  popu- 
lation, such  as  prohibiting  an  elector  from  voting  at  a  party  primary  if 
he  has  voted  at  another  party  primary  within  two  years  but  outside  Cook 
County  merely  requiring  him  to  state  his  party  affiliation,  are  violative  of 
this  section  and  void.'^ 

Freedom  of  elections  also  means  that  the  voters  shall  be  free  to  exer- 
cise the  elective  franchise  for  any  eligible  person  of  their  choice  without 
unwarranted  restrictions  and  hindrances.  Thus  reasonable  regulations 
such  as  requiring  a  candidate  to  file  a  petition  with  a  proper  percentage  of 
voters,  may  be  imposed  but  not  a  requirement  for  the  payment  of  a  fee  so 
large  as  not  to  be  intended  as  compensation  for  services  rendered  in  filing 
the  papers.^^ 

A  statutory  prohibition  against  a  candidate's  name  appearing  more  than 
once  on  the  ballot  does  not  prevent  freedom  of  elections  since  any   elec- 

*^"Report    Attorney    General    1915,    p.    229. 

''s  People  V  Election  Commissioners,   221   111.   9    (1906). 

*»Byler   v   i»  sher,    47    111.    101    (1868). 

^People  V  Hoffman,  116  111.  587   (1886);  People  v  Wanek,   241  111.  529    (1909). 

51  People    V    Strassheim.    240    111.    279    (1909). 

6^  People   V    Election   Commissioners,    221    111.    9    (1906). 

^People  V  Election  Commissioners,   221   111.  9    (1906). 


62  Article  2,  Section  19 

tor  desiring  to  vote  for  that  candidate,  is  afforded  the  opportunity  of  doing 
so." 

An  act  which  provides  that  precinct  and  ward  committeemen  shall 
nominate  candidates  for  their  respective  parties  does  not  violate  the  re- 
quirement of  freedom  and  equality  of  elections,  even  though  the  commit- 
teemen had  been  elected  prior  to  the  passage  of  the  act.  Each  member 
of  political  parties  is  entitled  to  participate  in  the  selection  of  committeemen 
who  thereby  become  the  legal  representatives  in  their  respective  parties.^^ 

But  the  legislature  may  not  deprive  the  members  of  political  parties  of 
the  right  to  participate  in  the  selection  of  party  candidates  for  office,  in 
case  of  vacancies  occurring  which  require  a  special  election,  by  giving  this 
power  to  the  managing  committee  of  parties,  although  such  a  provision 
would  probably  be  sustained  as  to  vacancies  caused  by  the  death  or  with- 
drawal of  candidates  since  lack  of  time  would  make  impracticable  nomi- 
nation by  the  convention  method.''" 


Section  19.  Every  person  ought  to  find  a  certain  remedy  in 
the  laws  for  all  injuries  and  wrongs  which  he  may  receive  in  his  per- 
son, property  or  reputation;  he  ought  to  obtain,  by  law,  right  and 
justice  freely  and  without  being  obliged  to  purchase  it,  completely 
and  without  denial,  promptly  and  without  delay. 


Certain  remedy.  The  refusal  by  the  courts  to  entertain  an  action  to 
recover  damages  alleged  to  have  been  sustained  by  the  malicious  institution 
of  a  civil  suit,  while  such  civil  suit  remains  pending,  is  not  a  withholding 
of  a  certain  remedy."  The  workmen's  compensation  act  provided  for  a 
hearing  and  the  payment  of  compensation  in  the  case  of  an  employee  in- 
jured by  a  person  other  than  his  employer.  This  provision  was  held  not  a 
deprivation  of  a  remedy,  since  the  act  merely  created  an  additional  remedy 
and,  in  effect,  permitted  an  election  as  to  the  remedy  to  be  pursued.'"* 
This  section  does  not  guarantee  a  remedy  for  an  injury  to  the  political 
right  to  have  election  ballots  lawfully  counted  since  elections  belong  to 
the  political  branch  of  the  government  and  in  the  absence  of  provision  for 
contests  by  that  branch,  the  courts  have  no  jurisdiction.^*  An  exception  to 
this  is  found,  however,  in  the  case  of  elections  relating  to  the  removal  of 
county  seats."" 

Statutory  provisions  which  grant  to  one  party  to  a  suit  the  right  to  a  re- 
view which  is  restricted  or  denied  to  the  other  party,  do  not  afford  the 
certain  remedy  which  this  section  guarantees."^ 

This  section  does  not  require  the  Supreme  Court  to  give  a  detailed 
opinion  on  every  point  raised  or  to  answer  every  contention  that  may  be 
made  by  counsel  in  the  argument  of  a  case."^ 


Right   to   Justice   without    being    obliged    to    purchase    it.     Statutes   re- 
quiring cost  bonds  from  litigants"^  or  the  payment  in  advance  of  jury  fees®* 

"People    V    Czarnecki.    266    111.    372    (1915). 
55  People   V    Sweitzer,    282    111.    171    (1918). 
5«  Rouse    V    Thompson,    228    111.    522    (1907), 
"Bonney    v   Kln«-,    201    111.    47    (1903). 
5«  Johnson   v   Choate,    284   111.    214    (1918). 
59  Douglas   V   Hutchinson,    183    111.    323    (1899). 
'•'^Boren   v   Smith,    47    111.    482    (1868). 

"iHecker   v   I.   C.   R.    R.   Co.,    231    111.    574    (1908);    Hayward  v    Sencenbaugh, 
235    111.   580    (1908). 

«3  Speight   V   People,   87   111.   595    (1877). 

«3Gesford  v  Critzer.    7   111.   698    (1845);    Casey  v  Horton,    36    111.   234    (1864). 

0*  Morrison   Hotel   Co.   v   Kirsner,    245   111.   431    (1910). 


Article  2,  Section  20  63 

have  been  sustained  in  civil  cases,  as  reasonable  provisions  to  protect 
officers  of  justice  against  loss  of  compensation  for  their  services.  But  the 
court  has  held  invalid  a  law  requiring  a  person  to  show  he  was  not  delin- 
quent for  taxes  in  order  to  question  a  tax  title,'^  and  a  statute  requiring 
the  payment  of  redemption  money  and  interest  as  a  condition  to  attacking 
the  validity  of  a  tax  deed.^® 


Section  20.  A  frequent  recurrence  to  the  fundamental  princi- 
ples of  civil  government  is  absolutely  necessary  to  preserve  the 
blessings  of  liberty. 


There  has  been  no  occasion  for  a  construction  or  interpretation  of 
this  plain  admonition  to  governmental  authority.  It  has  been  referred  to 
by  the  Supreme  Court  in  holding  unreasonable  and  oppressive  a  city  ordin- 
ance which  prohibits  the  getting  on  or  off  moving  cars  or  trains  of  cars 
without  first  securing  permission  from  persons  in  charge."'  In  another  case, 
the  court  held  invalid  a  statutory  provision  which  conferred  authority 
upon  a  court  to  direct  a  commissioner  owning  lands  in  a  drainage  district 
subject  to  assessment,  to  act  with  other  commissioners  in  assessing  bene- 
fits upon  the  land  in  the  district.  One  of  the  fundamental  principles  re- 
ferred to  by  this  section,  the  court  said,  is  that  impartial  tribunals  shall  be 
provided  for  the  adjudication  of  rights.*^ 


6'' Wilson  V   McKenna,    52   111.    43    (1869). 

««Reed  V  Tyler.  56  111.  288   (1870);   Senichka  v  Lowe,  74   111.   274   (1074), 

^MVice  V  C.  &  N.  W.   Ry.   Co..    193   111.    351    (1901). 

'^s  Drainage  Commissioners  v   Smith,   233    111.   417    (1908). 


ARTICLE  III— DISTRIBUTION  OF  POWERS. 


The  powers  of  the  government  of  this  State  are  divided  into 
three  distinct  departments — the  legislative,  executive  and  judicial; 
and  no  person,  or  collection  of  persons,  being  one  of  these  depart- 
ments, shall  exercise  any  power  properly  belonging  to  either  of  the 
others,  except  as  hereinafter  expressly  directed  or  permitted. 


In  general.  The  powers  of  the  three  departments  of  government  may- 
be briefly  defined  as  follows:  The  legislative  department  determines  what 
the  law  shall  be;  the  executive  department  executes  or  administers  the 
law;  and  the  judicial  department  construes  and  applies  the  law. 

This  article  of  the  constitution  does  not  mean  that  each  department 
of  government  is  absolutely  separate  and  distinct  from  the  others.  The 
spheres  of  activity  of  each  department  overlap  to  a  certain  extent,  and  the 
action  of  one  department  within  its  own  sphere  will  be  sustained  even 
though  it  may,  to  a  certain  degree,  exercise  powers  primarily  within  the 
sphere  of  another  department.  In  the  early  case  of  Field  v  People,^  it  was 
said:  "The  first  and  second  sections  of  the  first  article  of  the  constitution 
divide  the  powers  of  government  into  three  departments,  the  legislative, 
executive  and  judicial,  and  declare  that  neither  of  these  departments  shall 
exercise  any  of  the  powers  properly  belonging  to  either  of  the  others,  except 
as  expressly  permitted.  This  is  a  declaration  of  a  fundamental  principle;  and 
although  one  of  vital  importance,  it  is  to  be  understood  in  a  limited  and 
qualified  sense.  It  does  not  mean  that  the  legislative,  executive  and  judicial 
power,  should  be  kept  so  entirely  separate  and  distinct  as  to  have  no  con- 
nection or  dependence,  the  one  upon  the  other;  but  its  true  meaning,  both 
in  theory  and  practice,  is,  that  the  whole  power  of  two  or  more  of  these 
departments  shall  not  be  lodged  in  the  same  hands,  whether  of  one  or 
many.  That  this  is  the  sense  in  which  this  maxim  was  understood  by  the 
authors  of  our  government  and  those  of  the  general  and  state  governments, 
is  evidenced  by  the  constitutions  of  all.  In  every  one,  there  is  a  theoretical 
or  practical  recognition  of  this  maxim,  and  at  the  same  time  a  blending  and 
admixture  of  different  powers.  This  admixture  in  practice,  so  far  as  to 
give  each  department  a  constitutional  control  over  the  other,  is  considerei, 
by  the  wisest  statesmen,  as  essential  in  a  free  government,  as  a  separation. 
This  clause,  then,  is  the  broad  theoretical  line  of  demarcation,  between  the 
three  great  departments  of  government." 

In  State  of  Illinois  v  Illinois  Central  Railroad  Companys  the  court, 
in  considering  this  article,  said:  "The  legislative,  executive  and  judicial 
powers  are  not  to  be  kept  so  entirely  separate  and  distinct  as  to  have  no 
connection  or  interdependence.  In  every  constitution  there  is  a  blending 
and  admixture  of  different  powers.  'This  admixture,  in  practice,  so  far 
as  to  give  each  department  a  constitutional  control  over  the  others,  is 
considered  by  the  wisest  statesmen  as  essential  in  a  free  government  as 
a  separation.'  In  Cooley  on  Torts  that  author  says:  'Official  duties  are 
supposed  to  be  susceptible  of  classification  under  the  three  heads  of  legis- 
lative, executive  and  judicial,  corresponding  to  the  three  departments  of 
government  bearing   the   same   designations;    but   the    classification   cannot 

1  3   111.    79    (1839). 
='246    111.    188    (1910). 

65 


66  Article  3 

be  very  exact  and  there  are  many  officers  whose  duties  cannot  properly,  or 
at  least  exclusively,  be  arranged  under  either  of  these  heads.'  Certain  ad- 
ministrative officers  are  frequently  charged  with  duties  that  partake  of  the 
character  of  all  three  of  the  departments  but  which  cannot  be  classed  as 
belonging  essentially  to  either.  Administrative  and  executive  officers  are 
frequently  called  upon,  in  the  performance  of  their  duties,  to  exercise 
judgment  and  discretion,  to  investigate,  deliberate  and  decide,  and  yet  it 
has  been  held  that  they  do  not  exercise  judicial  power,  within  the  meaning 
of  the   constitutional   provision." 

It  is  apparent,  therefore,  that  one  department  is  not  usurping  the 
powers  of  another  department  merely  because  that  department  in  the  per- 
formance of  a  certain  act  exercises  powers  similar  to  those  exercised  by 
one  or  both  of  the  other  departments.  This  does  not  mean,  of  course,  that 
one  department  may  exercise  the  powers  that  essentially  belong  to  another 
department.  But  if  a  department  in  the  performance  of  an  act  properly 
within  its  domain,  must,  incidentally,  exercise  a  power  belonging  primarily 
to  another  department,  it  is  not  prevented  from  doing  so  by  the  doctrine 
of  separation  of  powers.  The  power  to  regulate  railroad  rates  is  essentially 
legislative,  but  it  is  clear  that  in  fixing  such  rates  the  General  Assembly, 
in  a  measure,  exercises  judicial  functions.^  An  administrative  agency  em- 
powered to  issue  and  revoke  licenses  to  engage  in  a  certain  business  or 
profession,  must,  necessarily,  .exercise  quasi  judicial  powers  in  determining 
that  a  license  shall  be  issued  to  a  certain  person,  or  that  a  license  already 
issued  shall  be  revoked,  but  this  exercise  of  a  quasi  judicial  power  is  only 
incidental  to  the  function  of  administering  the  law  relating  to  the  regula- 
tion of  a  particular  business  or  calling.^  And  a  court  is  not  exercising 
legislative  power  contrary  to  this  provision  of  the  constitution  when  it 
makes  rules  to  govern  the  transaction  of  its  business,  although  there  can 
be  no  doubt  that  the  making  of  rules  is,  in  a  certain  sense,  a  legislative 
function.' 

In  some  cases  it  is  quite  clear  that  one  department  is  encroaching  upon 
the  powers  of  another.  In  other  cases,  however,  it  is  difficult  to  determine 
whether  the  exercise  by  one  department  of  a  power  primarily  belonging 
to  another  department  is  a  clear  invasion  of  the  sphere  of  another  depart- 
ment or  merely  incidental  to  the  performance  of  an  act  properly  within 
the  domain  of  the  first  department;  and  in  such  cases,  the  whole  problem 
becomes  largely  a  question  of  drawing  the  line — a  question  of  degree.  (See 
discussion   subsequent   subheadings.) 

It  should  be  noted,  however,  that  this  article  provides  that,  ''except  as 
hereinafter  expressly  directed  or  permitted,''  no  person  or  persons  in  one 
department  of  government  shall  exercise  any  powers  properly  belonging  to 
another  department.  By  the  words  "except  as  hereinafter  expressly  directed 
or  permitted,"  the  constitution  recognizes  the  fact  that  certain  exceptions 
are  made  in  that  instrument,  itself,  to  the  doctrine  of  separation  of  powers 
established  by  this  article.  A  few  illustrations  may  be  of  value.  Section 
9  of  article  4  authorizes  the  General  Assembly  to  imprison  persons  for 
contemptuous  behavior  in  its  presence.  Section  24  of  the  same  article  pro- 
vides that  the  senate  shall  hear  and  determine  all  impeachments  returned 
or  found  by  the  house  of  representatives.  Section  30  of  article  6  gives  the 
General  Assembly  the  power  to  remove  judges  from  office  "for  cause  entered 
on  the  journals."  All  of  these  functions  are  judicial  in  nature  but  are 
conferred  upon  the  legislative  branch  of  the  government  by  the  constitution 
itself. 

The  power  to  enact  laws  is  clearly  a  legislative  power.  But,  under 
section  16  of  article  5,  the  Governor  may  veto  any  bill  passed  by  the  General 

3C.  M.  «&  St..  p.  Ry.  Co.  V.  Public  Utilities  Commission.   268  111.   49    (1915). 

*  People  V.  Apfelbaum.  251  111.  18  (1911);  Klafter  v.  State  Board  of  Ex- 
aminers, 259  111.  15  (1913);  People  v.  Brady,  268  111.  192  (1915);  People  v. 
Stokes,  281  111.  159  (1917);  see.  also,  Spiegler  v.  City  of  Chicago,  216  111.  114 
(1905);    Block   v.    City   of   Chicago.    239    111.    251    (1909). 

5  Dodge,   Conservator    v.   Cole.    97   111.   338    (1881). 


Article  3  67 

Assembly,  in  which  event  the  bill  cannot  become  a  law  unless  passed  over 
the  veto  by  a  vote  of  two-thirds  of  the  members  elected  to  each  house  of 
the  General  Assembly.  The  constitution  also  authorizes  the  Governor  to 
call  a  special  session  of  the  General  Assembly  (article  5,  section  8)  and  to 
adjourn  the  General  Assembly  in  the  event  of  a  disagreement  between  the 
two  houses  as  to  the  time  of  adjournment   (article  5,  section  9). 

Section  12  of  article  5  provides  that  "the  Governor  shall  have  power  to 
remove  any  officer  whom  he  may  appoint  in  case  of  incompetency,  neglect 
of  duty  or  malfeasance  in  office.""  Under  section  13  of  article  5  the  Governor 
has  the  power  to  grant  reprieves,  commutations  and  pardons.^  In  determin- 
ing that  an  officer  should  be  removed  because  of  incompetency,  neglect  of 
duty,  or  malfeasance  in  office,  or  that  a  reprieve,  commutation  or  pardon 
should  be  granted,  the  Governor  necessarily  exercises  powers  similar  to 
those  granted  to  the  judicial  department,  although  his  actions  in  no  event 
are  subject  to  judicial  review. 


Encroachments  by  the  legislative  department.  The  General  Assembly 
cannot  determine  that  a  debt  is  owed  by  one  person  to  another,*^  or  that  a 
person  has  a  dower  right  in  certain  lands,^  or  declare  the  forfeiture  of  a  con- 
tract or  corporate  charter,^''  or  determine  that  the  condition  of  a  deed  is 
broken,"  for  the  reason  that  all  of  these  are  judicial  questions  with  which 
the  legislative  body  has  no  power  to  deal.  The  General  Assembly,  while 
it  may  pass  laws  prescribing  rules  of  evidence  in  suits  in  the  courts,  and 
declare  that  the  existence  of  a  certain  fact  shall  constitute  prima  facie 
evidence,^^  cannot  declare  what  shall  be  conclusive  evidence  in  a  judicial 
proceeding  for  that  would  be  to  invade  the  province  of  the  judiciary.^^ 
And,  though  the  General  Assembly  may  pass  limitation  laws  barring  the 
right  to  sue  for  the  recovery  of  lands  after  the  expiration  of  a  certain  num- 
ber of  years,  it  cannot  provide  that  the  title  of  land,  after  the  expiration 
of  the  limitation  period,  shall  vest  in  the  person  against  whom  a  cause  of 
action  might  have  been  brought  prior  to  the  running  of  the  statute  of  limi- 
tations; the  determination  of  the  ownership  of  property  is  a  judicial  func- 
tion.» 

The  passage  of  validating  acts  is  not  necessarily  an  assumption  of 
judicial  power  by  the  General  Assembly.  Deeds  at  the  time  of  their  execu- 
tion may  be  unenforcible  because  of  defective  acknowledgments,  but  the 
General  Assembly  may  pass  a  law  validating  the  defective  acknowledgments 
and  making  the  deeds  valid,  enforcible  obligations,  unless  vested  rights  have 
attached  in  the  meantime;  and  this  "is  not  an  exercise  of  judicial  power 
since  it  does  not  purport  to  settle  suits  or  controversies."^'  In  the  same 
manner  the  General  Assembly  may  validate  tax  levies  and  the  organization 
of  high  school  districts  without  encroaching  upon  the  power  of  the  judici- 
ary.^*^ But  once  the  Supreme  Court  has  pronounced  judgment  with  reference 
to  a  certain  deed,  or  a  certain  high  school  district,  the  General  Assembly  can- 
not validate  that  deed  or  high  school  district,  for  the  effect  of  such 
action  by  the  General  Assembly  would  be  to  vacate  or  nullify  the  action 
of  one  of  the  co-ordinate  branches  of  the  government.^^    Nor  can  the  General 

« Wilcox    V.    People,    90    111.    186     (1878). 
^People   V.    La   Buy.    285    111.    141    (1918). 

''Lane   v.   Dorman.    4   111.   238    (1841);   see,   also,   Shaw   v.   Dennis,    10   111.   405 
(1849);    County   of   Richland   v.    County   of   Lawrence,    12    111.    1    (1850). 
•Edwards    v.    Pope,    4    111.    465     (1842). 
"Bruffett  V.   C.  W.  P.  R.  Co..   25  111.   353    (1861);   see,   also,   People  v.    Rose. 
207     111.     352      (1904). 

"Board    of    Education    v.    Bakewell.    122    111.    339    (1887). 
»2Burbank    v.    People.    90    111.    554     (1878). 

"  Shellabarg-er  Elevator  Co.  v  I.  C.  R.  R.  Co.,   278  111.  333    (1917). 
i^Newland    v.    Marsh.    19    111.    376    (1857). 

I'Steg-er  v.  T.  M.  Bids.  &  Loan  Ass'n.,  208  111.  236  (1904);  U.  S.  Mort- 
g-ag-e  Co.  V.  Gross.  93  111.  483  (1879);  see.  also.  Parmelee  v.  Lawrence.  48  111. 
331     (1868). 

i«CowRill   V.   Long-,   15   111.    202    (1853);   People   v.  Peltier.    275   111.    217    (1916). 
"C  &  E.  L   R.   R.  Co.  V.  People,   219   111.   408    (1906);   People   v.   N.   Y.   Cen- 
tral   R.    R.    Co..    283    111.    334    (1918). 


68  Article  3 

Assembly  in  a  validating  act  direct  the  abatement  of  pending  suits.  "The 
legislature  is  without  authority  to  direct  what  orders  shall  be  entered  by 
a  court  in  pending  actions.  It  may  enact  statutes  and  change  the  law, 
but  the  application  of  the  law  to  particular  cases  is  a  judicial  function, 
and  the  adjudication  as  to  what  orders  shall  be  entered  in  such  cases  is 
the  exercise  of  judicial  power,  which  does  not  belong  to  the  legislature."^*^ 
But  this  does  not  mean  that  the  Supreme  Court  will  not  give  effect  to  a 
validating  act  in  a  particular  case,  even  though  the  act  was  passed  after  the 
rendition  of  judgment  in  the  lower  court.  In  People  v  Madison,^'  the  court 
said:  "We  must  dispose  of  the  case  under  the  law  in  force  at  this  time 
and  not  as  it  was  when  judgment  was  rendered  in  the  circuit  court." 

In  the  case  of  In  re  Day,^'*'  it  was  held  that  an  attorney  at  law  is  an 
officer  of  the  court  and  that  the  power  to  prescribe  the  qualifications  which 
will  entitle  an  applicant  to  a  license  to  practice  law  is  judicial  and  not 
legislative.  In  that  case  the  court  said:  "The  function  of  determining 
whether  one  who  seeks  to  become  an  officer  of  the  courts  and  to  conduct 
causes  therein  is  sufficiently  acquainted  with  the  rules  established  by  the 
legislature  and  the  courts  governing  the  rights  of  parties  and  under  which 
justice  is  administered  pertains  to  the  courts  themselves.  They  must 
decide  whether  he  has  sufficient  legal  learning  to  enable  him  to  apply  those 
rules  to  varying  conditions  of  fact  and  to  bring  the  facts  and  law  before 
the  court  so  that  a  correct  conclusion  may  be  reached.  The  order  of  ad- 
mission is  the  judgment  of  the  court  that  he  possesses  the  requisite  qualifi- 
cations, under  such  restrictions  and  limitations  as  may  be  properly  im- 
posed by  the  legislature  for  the  protection  and  welfare  of  the  public.  The 
fact  that  the  legislature  may  prescribe  the  qualifications  of  doctors,  plumb- 
ers, horseshoers  and  persons  following  other  professions  or  callings  not 
connected  with  the  judicial  system,  and  may  say  what  shall  be  evidence  of 
such  qualifications,  can  have  no  influence  on  this  question.  A  license  to 
such  persons  confers  no  right  to  put  the  judicial  power  in  motion  or  to 
participate  in  judicial  proceedings."  (See  discussion  subheading,  "Inde- 
pendence of  departments.") 


Encroachments  by  the  executive  department.  The  question  of  the 
exercise  of  legislative  powers  by  the  executive  department  usually  arises  in 
connection  with  statutes  conferring  such  powers  upon  that  department.  No 
cases  have  arisen  in  which  the  executive  department  has  attempted  to  exer- 
cise legislative  powers  except  pursuant  to  a  law  passed  by  the  General  As- 
sembly. The  question  then,  in  so  far  as  the  exercise  of  legislative  power  is 
concerned,  is  one  of  delegation  of  legislative  power  and  that  question  is  con- 
sidered elsewhere  in  this  volume.  (See  discussion  article  4,  section  1,  sub- 
heading, "Delegation  of  legislative  power.") 

With  reference  to  the  exercise  of  judicial  powers  by  the  executive  de- 
partment, it  has  been  held  that  the  infliction  of  fines  and  penalties  is  a  ju- 
dicial function  which  cannot  be  conferred  on  a  person  who  is  in  the  execu- 
tive department.-^  (See  discussion  article  6,  section  1,  subheading  "Exercise 
of  judicial  powers.")  But  this  does  not  mean  that  the  General  Assembly  may 
not  confer  power  on  the  board  of  pardons  to  recommend  the  release  and  dis- 
charge of  prisoners  in  the  penal  institutions  of  the  state,  for  the  power  to 
recommend  is  not  essentially  judicial.  In  determining  whether  or  not  a 
recommendation  shall  issue  the  members  of  the  board  of  pardons  exercise 
powers  similar  to  those  exercised  by  the  judiciary,  but  the  primary  purpose 

!» People  v.  Madison.  280  111.  96  (1917):  see.  also.  People  v.  Wiley.  289  111. 
173    (1919). 

"280    111.    96    (1917). 

20  181    111.    73     (1899). 

=«  People  v.  Mallarv.  19.5  111.  582  (1902):  see,  also,  Beesman  v.  City  of  Pe- 
oria. 16  111.  484  (1855);  Bullock  v.  Geomble,  45  111.  218  (1867);  C.  C.  C.  &  St. 
L.    Ry.    Co.    V.    People,    212    111.    638    (1904). 


Article  3  69 

of  the  recommendation  is  that  of  administering  the  parole  law,  a  purely  ex- 
ecutive function. " 

An  act  of  the  General  Assembly  conferring  on  the  registrar  of  titles  the 
power  to  hear  and  decide  controversies  with  reference  to  land  titles  and 
to  issue  a  certificate  which  shall  be  conclusive  evidence  of  ownership,  if 
not  contested  in  the  courts  within  a  period  of  five  years,  was  held  void,  on 
the  ground  that  it  granted  judicial  powers  to  the  registrar  of  titles.^ 
Shortly  afterward,  however,  an  act  conferring  substantially  similar  powers 
on  the  registrar  of  titles  was  sustained.-'  The  workmen's  compensation 
act  does  not  confer  judicial  powers  on  the  industrial  board,  although  that 
board  is  given  the  power,  subject  to  judicial  review,  to  hear  and  determine 
claims  of  employees  against  their  employers  for  compensation  for  personal 
injuries  sustained  in  the  course  of  employment.^^  And  the  General  As- 
sembly may  authorize  the  removal  of  county  officers  and  the  review  of  as- 
sessments of  property  for  the  purposes  of  taxation  by  executive  or  adminis- 
trative agencies,  because  the  powers  thus  exercised  are  not  essentially 
judicial.^  (See  discussion  subsequent  subheadings,  "Appointment  of  officers" 
and  "Independence  of  departments.") 

Encroachments  by  the  judicial  department.  The  power  to  determine 
the  boundaries  of  municipal  corporations  is  purely  a  legislative  power 
which  cannot  be  conferred  on  the  courts.^'  This,  however,  does  not  pre- 
vent the  General  Assembly  from  giving  courts  the  power  to  ascertain  the 
existence  of  certain  preliminary  facts  before  the  question  of  organizing  a 
drainage  district  is  submitted  to  a  vote  of  the  people  in  the  territory  pro- 
posed to  be  organized  as  a  drainage  district.-*'  And  the  General  Assembly 
may  designate  three  judges  to  sit  as  a  board  or  commission  to  fix  the  boun- 
daries of  a  sanitary  district,  for  the  judges,  when  sitting  as  a  board 
or  commission,  are  not  acting  in  their  judicial  capacity.-^ 

While  the  judiciary  will  pass  on  the  question  whether  or  not  a  railroad 
rate  is  confiscatory,  and  thus  deprives  the  railroad  owners  of  their  property 
without  due  process  of  law,  it  has  no  power  to  fix  such  rates,  for  that  is 
a  legislative  function.^*^  The  power  to  levy  taxes  is  a  legislative  function 
which  cannot  be  exercised  by  the  judicial  department.^^  And  because  elec- 
tions are  under  legislative  control,  the  courts  will  not  take  jurisdiction  of 
election  contest?  unless  the  power  to  do  so  is  expressly  conferred  by  sta- 
tute.^^     (See  discussion  two  following  subheadings.) 


Appointment  of  officers.  The  power  to  appoint  to  office  is  ordinarily 
regarded  as  an  attribute  of  the  executive  or  administrative  branch  of  the 

22Georg-e  v.  People,   167  111.  447   (1897);  People  v.  Joyce,  246  111.  124   (1910). 

23  People   v   Chase,    165    111.    527    (1897). 

2-»  People  V.   Simon,   176   111.   165    (189S). 

25Diebeikis  v.  Link-Belt  Co..  261  111.  454  (1914).  When  this  decision  was 
rendered  the  worlcmen's  compensation  act  was  optional  and  not  compulsory. 
The  decision  was  based  largely  on  the  ground  that  when  the  parties  elected  to 
be  bound  by  the  act.  they  agreed  and  consented  to  the  arbitration.  Whether 
or  not  arbitrators  under  the  present  compulsory  workmen's  compensation 
act  exercise  judicial  powers  has  not  been  decided.  In  view  of  the  fact,  how- 
ever, that  the  actions  of  the  arbitrators  under  the  compulsory  act  are  subject 
to  judicial  review,  it  would  seem  clear  that  the  present  workmen's  compensation 
act  is  not  subject  to  the  constitutional  objection  that  the  arbitrators  exercise 
judicial  powers.     See  Johnson  v.   Choate,   284   111.   214    (1918). 

26  Donahue  v  Will  County,  100  111.  94  (1881);  People  v  Nellis,  249  111.  12 
(1911);  Bureau  County  v.  C.  B.  &  Q.  R.  R.  Co..  44  111.  229  (1867);  Owners  of 
Lands  v.  People,  113  111.  296  (1885);  Maxwell  v.  People.  189  111.  546  (1901); 
see,    also,    Rowe    v.    Bowen,    28    111.    116    (1862). 

^City  of  Galesburg  v.  Hawkinson.  75  111.  152  (1874);  Funkhouser  v. 
Randolph,    287    111.    94    (1919). 

-s  Blake   v.   People,    109    111.    504    (1884). 

»» People    v.    Nelson,    133    111.    565    (1890). 

39  C.  M.  &  St.  P.  Ry.  Co.  v.  Public  Utilities  Commission.  268  111.  49  (1915): 
Public  Utilities  Commission  v.  T.  R.  R.  Ass'n..  281  111.  181  (1917);  see,  also. 
C.   B.   &   Q.    R.    R.   Co.   v.   Jones,    149    111.    361    (1894). 

'1  School   Directors    v.    School    Directors.    232    111     322    (1908) 

"Keating  v.  Stack.  116  111.  191   (1886);  Lyons  v.  Becker,  272  111.   333   (1916). 


70  Article  3 

government,  although  the  Supreme  Court  has  said  that  the  appointing 
power  does  not  belong  peculiarly  to  any  one  department.  It  has  been  held 
that  article  3  of  the  constitution  does  not  prevent  the  General  Assembly 
from  giving  the  courts  the  power  to  appoint  park  commissioners,  drainage 
commissioners,  election  commissioners  and  county  mine  examining  boards.^*^ 
But  the  courts  cannot  be  given  the  power  to  appoint  or  remove,  directly 
or  indirectly,  officers  of  fire  departments  in  cities.^^  It  is  difficult  to  per- 
ceive a  distinction  between  officers  of  a  fire  department  on  the  one  hand  and 
park  and  drainage  commissioners  on  the  other.  If  the  appointment  by  a 
court  of  an  officer  of  a  fire  department  would  constitute  an  encroachment 
on  the  power  of  the  executive  department,  it  would  seem  that  the  appoint- 
ment by  the  courts  of  park  and  drainage  commissioners  would  also  he  an 
exercise  of  executive  power  by  the  judicial  department.  The  Supreme  Court, 
however,  distinguishes  between  the  two  classes  of  officers.  In  City  of 
Aurora  v  Schoeberlein,^'  the  court  says:  "It  has  been  held  competent  for  the 
legislature  to  confer  on  persons  holding  judicial  offices  the  power  to  appoint 
officers  whose  selection  or  appointment  cannot  be  classed  as  belonging  to 
either  of  the  departments  of  government;  but  we  do  not  think  there  can  be 
any  doubt  that  officers  of  a  fire  department  belong  to  the  executive  branch 
of  the  government." 

It  has  also  been  held  that  probation  officers  cannot  be  appointed  by 
any  member  of  the  executive  department,  but  that  they  must  be  appointed 
by  the  courts  or  elected  by  the  people.  The  basis  of  this  holding  is  that 
probation  officers  perform  judicial  rather  than  executive  or  ministerial 
duties,  and  that  if  the  power  of  appointment  were  vested  in  the  executive 
department  it  would  constitute  an  encroachment  on  the  powers  of  the 
judiciary .=*«  (See  discussion  last  paragraph  subheading,  "Encroachments 
by  the  legislative  department.") 


Independence  of  departments.  No  department  can  exercise  any  con- 
trol over  another  department.  The  courts  will  not  issue  a  writ  of  man- 
damus against  the  Governor  to  compel  him  to  perform  any  official  duty, 
whether  discretionary  or  ministerial.^'  And  the  writ  will  not  issue  against  a 
board  or  a  commission  of  which  he  is  a  member.^*^  The  writ  will  issue,  how- 
ever, if  the  Governor  voluntarily  submits  to  the  jurisdiction  of  the  court.''^ 
The  question  as  to  the  power  of  the  courts  over  the  Governor  seems  to  have 
arisen  only  in  cases  where  it  was  sought  to  compel  the  Governor  to  per- 
form a  duty.  Injunction  suits  have  been  filed  against  the  Governor  and 
disposed  of  on  their  merits  without  any  point  being  raised  as  to  the  power 
of  the  courts  to  restrain  an  act  of  the  Governor  in  his  official  capacity.** 
And  it  should  be  noted  that  the  writ  of  mandamus  will  issue  against  other 
executive  officers,  such  as  the  Secretary  of  State,  State  Treasurer  and  Audi- 
tor of  Public  Accounts.^  (See  discussion  article  4,  section  26,  subheading 
"Suits  against  state  officers.") 

While  the  judicial  department  will  declare  acts  of  the  General  Assembly 
unconstitutional,  if  in  violation  of  the  constitution,  it  has  frequently  an- 
nounced the  theory  that  it  will  not  attempt  to  tell  the  General  Assembly 
that  a  certain  law  ought  to  be  passed,^-  and  that  it  will  not  question  the 

33  People  V.  Morgan.  90  111.  558  (1878);  Owners  of  Land  v.  People,  113  111. 
296  (1885);  People  v.  Hoffman,  116  111.  587  (1886);  Sherman  v.  People,  210  111. 
552    (1904);    People   v.   Evans,    247    111.    547    (1910). 

34  City  of  Aurora  v.  Schoeberlein,  230  111.   496    (1907). 
"^  230    111     496    (1907) 

3«  Witter' v.  Cook  County  Commissioners,  256  111.  616  (1912);  see,  also,  In  re 
Day,    181    111.    73     (1899). 

3' People   v.    Bissell.    19    111.    229    (1857). 

38  People  v  Dunne,   258   111.   441    (1913).  ^        ,  -r^  oco    m 

s»  People    v.    Palmer.    64    111.    41    (1872);    but    see    People    v.    Dunne,    258    111. 

«<•  Hubbard  v.  Dunne,  276  111.  598  (1917);  Mitchell  v.  Lowden.  288  111.  327 
/I  919) 

«'i>^ople  V.  Rose,   167   111.   147    (1897);   People  v.  Brady,   262   111.  578    (19J4) 
42  Correspondence    between    Governor   and    Supreme   Court,    243    111.    9    (1909). 


Article  3  71 

reason  or  motive  of  the  General  Assembly  in  passing  any  law/^  The  courts 
declare  that  they  will  give  no  heed  to  an  argument  that  a  law  is  unjust  and 
oppressive.  If  a  law  does  not  conflict  with  the  constitution,  it  must  be  en- 
forced, for  questions  of  policy  and  expediency  in  conection  with  legislation 
are  to  be  determined  by  the  General  Assembly  alone.** 

In  accordance  with  this  theory  of  the  independence  of  each  department, 
the  judiciary  will  not  permit  the  executive  or  legislative  departments  to  exer- 
cise any  control  over  it.  The  Supreme  Court  is  under  no  obligation  to  draft 
a  primary  election  bill  even  though  requested  by  the  Governor  t6  do  so.** 
(See  article  6,  section  31.)  And  the  General  Assembly  cannot  tell  the 
courts  how  to  construe  a  statute.*' 

In  People  v  McCullough*'  the  state  civil  service  law  was  called  into 
question  on  the  ground  that  it  limited  the  power  of  the  elective  executive 
state  officers  to  appoint  the  employees  in  their  offices,  and  was  thus  an 
attempt  by  the  General  Assembly  to  exercise  control  over  the  executive 
department.  Three  judges  held  that  the  state  civil  service  law  was  not  an 
encroachment  by  the  legislative  department  on  the  powers  of  the  executive 
department.  Three  judges  held  that  it  was.  The  seventh  judge  held  that,  in 
so  far  as  the  civil  service  act  interfered  with  the  powers  of  the  executive 
state  officers  to  appoint  employees  to  assist  them  in  the  performance  of  their 
constitutional  duties,  as  distinguished  from  duties  imposed  upon  them  by 
statute,  it  was  an  unconstitutional  encroachment  by  the  General  Assembly 
upon  the  powers  of  these  officers.  The  view  of  the  seventh  judge,  of  course, 
constituted  the  decision  of  the  court  in  that  case.  In  People  v  Brady** 
the  court  was  called  upon  to  consider  the  constitutionality  of  the  civil 
service  law  as  applied  to  the  employees  in  the  office  of  the  clerk  of  the 
Supreme  Court,  who  is  an  officer  of  the  court  and  elected  by  the  people  of 
the  state.  Five  judges  held  that  the  constitution  did  not  prohibit  the  applica- 
tion of  the  civil  service  law  to  all  of  the  employees  in  the  office  of  the  clerk 
of  the  Supreme  Court,  and  made  no  distinction  between  constitutional  and 
statutory  duties.  The  apparent  effect  of  this  decision  is  to  sustain  the 
power  of  the  General  Assembly  to  provide  that  the  civil  service  law  shall  be 
applicable  to  all  of  the  employees  in  the  executive  and  judicial  departments 
regardless  of  the  character  of  their  duties. 


Incompatibility  of  offices.  The  Attorney  General  has  frequently  rend- 
ered opinions  that  this  article  of  the  constitution  may  prevent  one  person 
from  holding  two  offices  at  the  same  time.  Thus,  it  has  been  held  that  a 
mayor  of  a  city  cannot  hold  the  office  of  county  judge  or  the  office  of  state 
senator;*®  that  a  justice  of  the  peace  cannot  hold  the  office  of  alderman  in 
a  city  council,  or  member  of  the  board  of  trustees  of  a  village,  or  circuit 
clerk,  or  town  clerk;""  and  that  a  member  of  the  General  Assembly  cannot 
hold  the  office  of  probation  officer.^'  The  basis  for  these  holdings  is  that  in 
feach  case  the  two  offices  belong  to  different  departments  of  government,  and 
that  to  permit  one  person  to  hold  both  offices  at  the  same  time  would  be  to 
authorize  that  person  to  exercise  the  powers  of  two  departments  of  govern- 
ment contrary  to  the  principle  of  separation  of  powers  announced  by 
article  3. 

«  People  V.  Thompson,  155  111.  451   (1895);  People  v.  Rose,  203  111.  46    (1903). 

4*  Board  of  Supervisors  v.  State's  Attorney.  31  111.  68  (1863);  People  v. 
Shedd.   241    111.   155    (1909);   Town   of  Cicero   v.  Haas.    244   111.   551    (1910). 

*^  Correspondence  between  Governor  and  Supreme  Court,   243   111.  9    (1909). 

*«Rockhold  V.  Canton  Benevolent  Society,  129  111.  440  (1889);  but  see  People 
V.  Bowman.  247  111.  276   (1910). 

«254    111.    9    (1912). 

•8  275    111.    261    (1916). 

*»  Report  Attorney  General  1912.  p.  1343;  1914,  p.  1175. 

»» Report  Attorney  General  1916,  p.  788;  1914,  p.  1157;  1915,  pp.  782,  789. 

"  Report  Attorney  General  1916,  p.  931. 


ARTICLE  IV— LEGISLATIVE  DEPARTMENT. 


Section  1.  The  legislative  power  shall  be  vested  in  a  General 
Assembly,  which  shall  consist  of  a  Senate  and  House  of  Represen- 
tatives, both  to  be  elected  by  the  people. 

In  construing  this  section,  two  principal  questions  have  presented 
themselves.  These  questions  are  (1)  the  extent  of  the  legislative  power 
of  the  General  Assembly,  and  (2)  the  authority  of  the  General  Assembly 
to  delegate  the  legislative  power  conferred  upon  it. 


Extent  of  power  of  General  Assembly.  The  General  Assembly  has  all 
powers  not  denied  to  it  by  the  Federal  or  State  constitutions.^  The  state 
constitution  is  not  a  grant  of  power  to  the  General  Assembly  but  is  merely 
a  limitation  on  the  power  of  the  General  Assembly,  and  that  body  is  fully 
authorized  to  legislate  on  all  subjects  unless  the  constitutions  of  the  United 
States  or  the  state  forbid.^  Thus  the  General  Assembly,  since  there  is 
nothing  in  the  constitution  which  denies  it  the  power  to  regulate  the  prac- 
tice of  the  courts,  may  pass  a  law  requiring  that  an  affidavit  of  merits 
shall  be  filed  with  the  defendant's  plea  in  certain  classes  of  suits  at  law.* 
And  for  the  same  reason  the  General  Assembly  may  provide  for  the  removal, 
by  the  county  board  of  supervisors,  of  county  treasurers  for  misconduct  in 
office,*  or  for  the  removal,  by  the  Governor,  of  sheriffs  for  failure  to  do  all 
in  their  power  to  prevent  lynchings,^  or  for  the  disposal  of  land  owned  by  a 
county,"  or  for  the  levy  of  a  wheel  tax  by  cities.'  But  the  General  Assembly 
cannot  provide  for  more  than  one  senatorial  apportionment  in  any  ten  year* 
period  following  a  Federal  census,  because  the  constitution,  as  construed  by 
the  Supreme  Court,  forbids  more  than  one  such  apportionment.**  Nor  can  the~- 
General  Assembly  make  appropriations  for  the  maintenance  of  the  Illinois- 
and  Michigan  Canal,  for  the  reason  that  such  appropriations,  in  the  opiniom 
of  the  court,  are  forbidden  by  the  constitution.® 

The  rule  in  connection  with  this  matter  is  easily  stated.  The  difficulty, 
however,  arises  in  determining  whether  or  not  the  constitution  does  in  fact 
limit  the  power  of  the  General  Assembly  with  respect  to  certain  things.  The 
courts  have  frequently  held  that  the  power  of  the  General  Assembly  with 
reference  to  a  certain  subject,  is  limited  by  the  constitution,  although  the 
constitutional  language  contains  no  express  limitation  of  power — that  is,  con- 
stitutional limitations  on  legislative  power  are  not  always  to  be  found  in 
the  express  language  of  the  constitution  but  may  arise  by  implication.  For 
example,  the  constitution    (article  4,  section  6)    provides  that  "the  General 

iHarder's  Storag-e  Co.  v  City  of  Chicago,  235  III.  58  (1908);  People  v  Board 
of    Supervisors.    223    111.    187    (1906);    People   v    McCormick.    261    111.    413    (1914). 

2  Harris  v  Board  of  Supervisors.  105  111.  445  (1883);  People  v  Hutchinson. 
172    111.    486    (1898). 

^Honore    v   Home   National   Bank,    80    111.    489    (1875). 

*  Donahue   v   Will   County,    100   111.    94    (1881). 

« People  v.  Nellis,  249  111.   12    (1911). 

"Harris  v   Board  of   Supervisors,   105   111.   445    (1883). 

■'Harder's    Storage   Co.   v   City   of   Chicago,    235    111.    58    (1908). 

8  People   V   Hutchinson,    172    111.    486    (1898). 

•Burke  v  Snively,   208   111.   328    (1904). 

78 


74  Article  4,  Section  1 

Assembly  shall  apportion  the  state  every  ten  years  beginning  with  the  year 
one  thousand  eight  hundred  and  seventy-one."  There  is  nothing  in  this 
language  that  expressly  forbids  more  than  one  apportionment  in  each  ten 
year  period  following  a  Federal  census.  But  the  Supreme  Court  has  held 
that  this  language  is  a  limitation  on  the  power  of  the  General  Assembly  and 
that  only  one  apportionment  can  be  made  in  each  ten  year  period  following 
a  Federal  census.^°  The  whole  problem  of  implied  limitations  on  the  power 
of  the  General  Assembly  is  a  difficult  one,  and  it  is  not  an  easy  matter  to 
harmonize  all  of  the  judicial  decisions  on  the  subject. 

The  constitution  (article  5,  section  1)  provides  that  the  Attorney  Gen- 
-eral  "shall  perform  such  duties  as  may  be  prescribed  by  law."  It  would 
seem  that  under  this  language  the  General  Assembly  would  have  full  and 
complete  power  to  regulate  the  duties  of  the  Attorney  General  in  any  man- 
ner that  was  deemed  necessary.  But  in  Fergus  v  Russel"  the  court  held 
that,  even  though  the  Attorney  General  was  not  a  constitutional  officer  under 
the  constitution  of  1848,  the  constitution  of  1870,  in  creating  the  oflEice  of 
Attorney  General,  endowed  that  officer  with  all  of  the  powers  and  duties  of 
the  attorney  general  known  to  the  common  law;  and  that  the  General  As- 
sembly could  not  deprive  the  Attorney  General  of  any  of  the  powers  and 
duties  which  were  exercisable  by  that  officer  under  the  common  law.  And 
the  same  rule  has  been  applied  to  sheriffs'-,  who  are  county  officers  created 
by  the  constitution  (article  10,  section  8).  It  should  be  pointed  out,  how- 
ever, that  with  respect  to  the  duties  of  sheriffs  the  constitution  is  abso- 
lutely silent. 

Section  1  of  article  7  expressly  limits  the  right  of  suffrage  to  males. 
But  it  has  been  held  that  this  section  is  a  limitation  of  power  on  the 
General  Assembly  only  with  respect  to  the  officers  created  by  the  consti- 
tution, and  those  questions  which  are  required  by  that  instrument  to  be 
submitted  to  the  voters;  and  that  the  General  Assembly  may  authorize 
women  to  vote  for  all  officers  created  by  statute,  and  on  all  questions  re- 
quired by  statute  to  be  submitted  to  a  vote  of  the  people."  On  the  other 
hand  primary  elections,  which  were  unknown  when  the  constitution  of 
1870  was  adopted,  and  which  are  pure  statutory  innovations,  are  included 
within  the  meaning  of  the  word  "elections"  as  used  in  section  18  of 
article  2." 

Section  6  of  article  7  provides  that  "no  person  shall  be  elected  or  ap- 
pointed to  any  office  in  this  state,  who  is  not  a  citizen  of  the  United  States, 
and  who  shall  not  have  resided  in  this  state  one  year  next  preceding  the 
election  or  appointment."  This  section  clearly  prevents  the  General  Assembly 
from  providing  that  persons  who  have  resided  less  than  one  year  in  this 
state  shall  be  eligible  to  any  office.  And  it  would  seem  that  this  section 
does  not  deprive  the  General  Assembly  of  the  power  to  provide  that  no 
person  shall  be  eligible  to  a  certain  office  unless  he  has  resided  in  the  state 
for  a  period  of  five  years.  In  People  v  McCormick,*^  however,  the  court 
held  that  the  General  Assembly,  with  respect  to  an  office,  eligibility  to 
which  is  not  prescribed  by  other  provisions  of  the  constitution,  could  not 

i**  People    V   Hutchinson,    172    111.    486    (1898). 

11270    111.    304    (1915). 

"Dahnke    v   People.    168   111.    102    (1897). 

i3Scown  V  Czarnecki,  264  111.  305  (1914);  see,  also,  People  v  Nelson,  133  111. 
565  (1890).  The  case  of  People  v  Nellis.  249  111.  12  (1911)  Involves  a  similar 
construction  of  constitutional  lang-uage.  The  constitution  (article  5,  section  12) 
provides  that  "the  Governor  shall  have  power  to  remove  any  oflicer  whom  he  may 
appoint  .  .  .".  Section  8  of  article  10  creates  the  office  of  sheriff  and  pro- 
vides that  the  sheriff  shall  hold  office  for'  four  years.  The  first  provision  might 
well  have  been  construed  as  denying-  to  the  Governor  the  power  to  remove  any 
officer  not  appointed  by  him.  The  second  provision  could  have  been  con- 
strued as  denying  the  right  to  reduce  the  sheriff's  term  of  four  years.  But 
it  was  held  in  the  Nellis  case  that  the  General  Assembly  could  authorize  the 
Governor,  under  certain  circumstances,  to  remove  sheriffs  from  office. 

1*  People  v  Board  of  Election  Cammissioners.  221  111.  9  (1906);  Rouse  v 
Thompson,  228  111.  522  (1907);  People  v  Strassheim,  240  111.  279  (1909);  People 
V   Deneen,    247    111.    289    (1910). 

15  261   111.   413    (1914). 


Article  4,  Section  1  75 

provide  that  a  person  should  be  ineligible  to  that  office  unless  he  had  re- 
sided in  the  state  for  a  certain  period,  more  than  one  year. 

An  interesting  case  in  this  connection  arose  under  the  constitution 
of  1848.  That  instrument  (article  7,  section  6)  provided  that  "the  General 
Assembly  shall  provide  by  a  general  law,  for  a  township  organization,  under 
which  any  county  may  organize  whenever  a  majority  of  the  voters  of  such 
county  at  any  general  election  shall  so  determine''.  No  provision  was 
made  in  the  constitution  with  reference  to  the  abandonment  of  township 
organization  by  a  county  which  had  adopted  the  township  system.  The 
General  Assembly  passed  a  law  providing  that  any  county,  which  had 
adopted  the  township  system,  could  abandon  it  by  a  vote  of  a  majority  of 
those  Tparticipating  in  a  special  election.  In  holding  that  this  act  was  void' 
the  court  said:  "Although  the  constitution  makes  no  express  provision  for 
the  abandonment  of  the  system,  when  once  adopted  according  to  its  pro- 
visions, we  are  not  prepared  to  say  that  it  may  not  reasonably  be  construed 
to  allow  the  legislature  to  provide  for  its  abrogation;  but  if  they  do  so,  it 
must  be  done  by  pursuing  the  same  course  and  adopting  the  same  guaran- 
tees,  to  protect  the  rights  of  all,  which  the  constitution  requires  to  be  ob- 
served in  the  adoption  of  the  system;  that  is  to  say,  it  must  be  done  at  a 
general  election,  and  by  a  majority  of  the  voters. "^"^ 

These  cases  may  suffice  to  indicate  that  qualifications  must  be  made  to 
the  statement  that  the  General  Assembly  has  all  powers  not  denied  by  the 
constitution.  The  real  question  is  that  as  to  what  powers  the  Supreme 
Court  will  find  to  be  denied  by  the  language  of  the  constitution.  In  some 
cases  the  court  has  construed  constitutional  language  as  containing  no 
denial  of  power  beyond  the  express  language  of  the  constitutional  text,  as 
for  example,  with  respect  to  woman  suffrage;  in  other  cases  the  court  has 
found  limitations  to  exist  by  implications  which  are  not  within  the  ex- 
press terms  of  the  constitutional  language,  as  in  the  cases  of  Fergus  v 
Russel  and  People  v  McCormick. 


Delegation  of  legislative  power.  The  whole  of  the  legislative  power 
of  the  state  is  vested  in  the  General  Assembly  and  this  power  may  not  be 
delegated.'"  This,  however,  does  not  prevent  the  General  Assembly  from 
delegating  to  municipalities  such  legislative  power  as  it  may  lawfully  exer- 
cise for  the  government  and  regulation  of  local  affairs.^ 

The  General  Assembly  is  the  law-making  power,  but  it  may  autfeorlze'^ 
others  to  do  things  which  it  might  properly  but  cannot  understandingly  or' 
advantageously  do  itself.  So,  the  General  Assembly  may  authorize  a  civili 
service  commission  to  hold  and  conduct  examinations  to  determine  the 
fitness  and  competency  of  persons  seeking  employment  by  the  state  or  its 
municipalities,^^  or  authorize  the  factory  inspector  to  prescribe  the  number^ 
location,  material,  kind,  and  manner  of  construction  of  fire  escapes.-"^  The 
General  Assembly  may  also  authorize  a  board  or  commission  to  fix  and 
regulate  railroad   rates.^ 

The  General  Assembly  cannot  delegate  the  power  to  determine  what 
a  law  shall  be,  but  may  confer  authority  or  discretion  as  to  its  execution- 
Legislative  power  does  not  mean  that  every  act  of  the  officers  created  by 
the  General  Assembly  must  be  expressly  prescribed  by  the  law-making- 
power.  Thus,  the  General  Assembly  may  grant  power  to  the  board  of 
pardons  to  make  rules  and  regulations  for  the  administration  of  the 
parole  law;-='  or  give  to  the  board  of  dental  examiners  the  power  to  make 

i«  People  V  Couchman,   15   111.    142    (1853). 

"People  V  Board  of  Election  Commissioners,  221  111.  9  (1906)-  Rouse  v 
Thompson,    228    111.    522    (1907). 

i8Ck)ndon  v  Village  of  Forest  Park,  278  111.  218  (1917);  City  of  Clinton  v 
Wilson.    257    111.    580    (1913). 

^9  People  V  Kipley,  171  111.  44   (1898). 

2»Arms   v  Ayer,    192    111.    601    (1901). 

21  C.   B.   &  Q.  R.  R.   Co.  V  Jones,    149   111.   361    (1894). 

23  People    V    Roth,    249    111.    532    (1911). 


76  Article  4,  Section  2 

reasonable  rules  and  regulations  pertaining  to  the  administration  of  the 
dentistry  act;^^  or  authorize  the  board  of  examiners  of  architects  to  revoke 
licenses  of  architects  for  gross  incompetency  or  recklessness  in  the  con- 
struction  of  buildings.^ 

While  the  General  Assembly  may  permit  the  exercise  of  some  discretion 
by  an  administrative  agency  with  reference  to  the  execution  of  a  law,  it 
cannot  vest  such  an  agency  with  an  absolute  or  arbitrary  discretion.  A 
law  which  vests  in  the  discretion  of  a  public  officer,  unregulated  by  any 
rules  or  conditions,  whether  it  shall  be  enforced  or  not,  is  void,  as  being 
an  unconstitutional  delegation  of  legislative  power.  Thus,  a  law  which 
confers  upon  a  public  officer  the  power,  in  his  discretion,  to  issue  or  revoke 
licenses  or  permits  to  engage  in  a  certain  business  or  calling,  or  to  de- 
termine, in  his  discretion,  whether  or  not  the  law  shall  be  enforced,  is  un- 
constitutional, because  it  delegates  legislative  power  to  such  officer.^^  (See 
discussion  article  2,  section  2,  sub-heading  "Arbitrary  discretion"). 

And  a  law  must  be  complete  in  all  its  terms  and  conditions  when  it 
leaves  the  General  Assembly  The  primary  election  law  of  1905  was  held 
void,  because  it  gave  the  county  central  committee  of  each  political  party 
the  power  to  determine  whether  candidates  for  county  offices  should  be 
nominated  at  a  primary  election,  or  by  delegates  chosen  at  the  primary  elec- 
tion, and  also  because  it  gave  the  central  committee  power  to  determine 
whether  the  candidates  for  county  offices  should  be  nominated  by  a  majority 
or  plurality  vote.*  In  the  opinion  of  the  court,  the  law  was  not  complete 
when  it  left  the  General  Assembly  but  delegated  to  the  county  central  com- 
mittee the  power  to  determine  what  the  law  should  be. 

This  section  of  the  constitution  does  not  prevent  the  General  Assembly 
from  passing  a  law,  the  ultimate  operation  of  which  may,  by  its  own  terms, 
be  made  to  depend  upon  some  contingency,  such  as  the  affirmative  vote  of 
the  electors  in  a  given  district,^  or  upon  the  action  of  some  municipality, 
commission  or  other  public  agency ,="*  provided  that  the  law  when  it  leaves 
the  General  Assembly  is  complete.  It  must  be  borne  in  mind,  however, 
that  the  power  to  determine  the  contingency  upon  which  a  law  shall  go 
Into  effect  cannot  be  given  to  a  private  person  or  agency,  but  must  be  given, 
if  at  all,  to  the  people,  or  a  public  agency  or  officer.^  The  Attorney  General 
has  held  that  the  General  Assembly  may  pass  a  law  and  make  its  effective- 
ness depend  upon  a  state  wide  referendum.'** 


Section  2.  An  election  for  members  of  the  General  Assembly 
shall  be  held  on  the  Tuesday  next  after  the  first  Monday  in  Novem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seven- 
ty, and  every  two  years  thereafter,  in  each  county,  at  such  places 
therein  as  may  be  provided  by  law.  When  vacancies  occur  in 
either  house,  the  Governor,  or  person  exercising  the  powers  of 
Governor,  shall  issue  writs  of  election  to  fill  such  vacancies. 

"3  Kettles   V   People,    221   111.    221    (1906). 

-*  Klafter  v  Board  of  Examiners,  259  111.  15  (1913);  see,  also.  Block  v  People, 
239  111.  251   (1909)  and  People  v  Helse,  257  111.  554    (1913). 

25  People  V  Kane  288  111.  235  (1919);  Kenyon  v  Moore,  287  111.  233  (1919); 
Sheldon  v  Hoyne,  261  111.  222  (1914);  Noel  v  People,  187  111.  587  (1900);  Veto  Mes- 
sages,   1919   p.   9. 

28  People   V   Board   of   Election   Commissioners,    221    111.   9    (1906). 

21  People  V  McBride,  234  111.  146  (1908);  Chicago  Torminal  R.  R.  Co.  v  Greer, 
223  111.  104  (1906);  People  v  Reynolds,  10  111.  1  (1848);  Report  Attorney  Gen- 
eral   1915,    p.    464. 

28  Schweiker  v  Husser.  146  111.  399  (1893);  Home  Insurance  Co.  v  Swigert, 
104  111.   653    (1882). 

2»  Rouse  V  Thompson,   228   111.   522    (1907). 

3°  Report  Attorney  General   1915,   p.  464. 


Article  4,  Section  3  77 

The  Attorney  General  in  1916  held  that  it  is  a  matter  of  serious  doubt 
whether  the  Governor  has  the  power  to  determine  that  there  is  a  vacancy  in 
the  General  Assembly  because  of  the  lack  of  qualifications  of  an  incumbent. 
The  basis  for  this  holding  is  that  section  9  of  article  4  of  the  constitution 
provides  that  each  house  shall  be  the  judge  of  the  qualifications  of  its  mem- 
bers. The  case  presented  to  the  Attorney  General  was  as  follows:  A  sen- 
ator was  elected  judge  of  the  municipal  court  of  Chicago,  qualifie:!  and  en- 
tered upon  his  duties.  Section  3  of  article  4  of  the  constitution  provides 
that  no  judge  of  any  court  shall  be  a  member  of  the  General  Assembly. 
The  question  was  whether  or  not  the  Governor  could  determine  that  this 
senator,  having  entered  upon  his  duties  as  a  judge  of  a  court,  was,  under  sec- 
tion 3  of  article  4,  no  longer  eligible  to  sit  in  the  Senate,  that  his  office  was 
vacant,  and  that  a  special  election  should  be  called  to  fill  the  vacancy.  The 
Attorney  General  expressed  a  serious  doubt  as  to  whether  or  not  such  action 
on  the  part  of  the  Governor  would  not  be  in  contravention  to  section  9  of 
article  4,  which  gives  each  house  the  right  to  determine  the  qualifications 
of  its  members.^^     (See  discussion  article  4,  section  9.) 


Section  3.  No  person  shall  be  a  Senator  who  shall  not  have 
attained  the  age  of  twenty-five  years,  or  a  Representative  who 
shall  not  have  attained  the  age  of  twenty-one  years.  No  person 
shall  be  a  Senator  or  a  Representative  who  shall  not  be  a  citizen 
of  the  United  States,  and  who  shall  not  have  been  for  five  years  a 
resident  of  this  State,  and  for  two  years  next  preceding  his  election 
a  resident  within  the  territory  forming  the  district  from  which  he 
is  elected.  No  judge  or  clerk  of  any  court.  Secretary  of  State, 
Attorney  General,  State's  Attorney,  recorder,  sheriff,  or  collector 
of  public  revenue,  member  of  either  House  of  Congress,  or  person 
holding  any  lucrative  office  under  the  United  States  or  this  State, 
or  any  foreign  government,  shall  have  a  seat  in  the  General  Assem- 
bly: Provided,  that  appointments  in  the  militia,  and  the  offices 
of  notary  public  and  justice  of  the  peace,  shall  not  be  considered 
lucrative.  Nor  shall  any  person  holding  any  office  of  honor  or 
profit  under  any  foreign  government,  or  under  the  government  of 
the  United  States,  (except  postmasters  whose  annual  compensa- 
tion does  not  exceed  the  sum  of  three  hundred  dollars)  hold  any 
office  of  honor  or  profit  under  the  authority  of  this  State. 


Qualifications  of  members  of  the  General  Assembly.  The  General  As- 
sembly has  no  power  to  add  to  the  qualifications  of  the  members  of  that 
body  as  fixed  by  the  constitution.  For  example,  the  constitution  provides 
that  no  person  shall  be  a  member  of  the  General  Assembly  who  shall  not 
have  been  for  two  years  next  preceding  his  election,  a  resident  of  the  terri- 
tory forming  the  district  from  which  he  is  elected.  The  primary  election 
act  of  1905  provided  that  "in  senatorial  districts  consisting  of  two  counties, 
no  more  than  two  persons  of  the  same  political  party  .  .  .  shall  be 
nominated  from  any  one  county  .  .  ."  This  provision  was  held  void 
on  the  ground  that,  by  requiring  candidates  to  come  from  particular  counties 
of  the  senatorial  district,  the  provision  of  the  constitution  which  provides 
only  for  residence  within  the  senatorial  district  was  violated.^^ 

The  question  whether  or  not  a  member  of  the  General  Assembly  may 
hold  certain  other  offices  in  the  state  has  never  been  presented  to  the  Su- 

"  Report   Attorney   General    1916,    p.    135. 

32  People  V  Board  of  Election  Commissioners,  221  111.  9   (1906). 


78  Article  4,  Section  4 

preme  Court  but  has  been  passed  on  in  one  appellate  court  decision  and  in 
several  opinions  of  the  Attorney  General.  It  has  been  held  that  a  member 
of  the  General  Assembly  cannot  hold  the  office  of  judge  of  the  circuit  court, 
or  clerk  of  the  municipal  court,  or  mayor  of  a  city,  or  delegate  to  a  con- 
stitutional convention,  or  member  of  the  board  of  supervisors.^^  He  must 
resign  from  one  or  the  other.  If  a  member  of  the  General  Assembly  shall 
qualify  and  enter  upon  the  duties  of  an  office  incompatible  with  his  office 
as  a  member  of  the  General  Assembly,  he  will  be  deemed  to  have  resigned 
his  seat  in  the  General  Assembly.^*  It  has  also  been  held  by  the  Attorney  Gen- 
eral that  a  justice  of  the  peace  may  not,  during  his  term  of  office,  hold  a 
seat  in  the  General  Assembly.'*''  This  holding  would  seem  to  be  erroneous 
for  the  reason  that  the  above  section. of  the  constitution  expressly  provides 
that  the  office  of  justice  of  the  peace  shall  not  be  considered  a  lucrative 
office  such  as  will  bar  membership  in  the  General  Assembly.  In  the  opin- 
ion of  the  Attorney  General  an  appointment  in  the  militia  of  the  state 
does  not  render  the  appointee  ineligible  as  a  member  of  the  General  As- 
sembly ;^^  and  a  member  of  the  state  central  committee,  because  his  office 
is  political  and  not  governmental,  may  have  a  seat  in  the  General  Assem- 
bly."    (See  discussion  article  4,  section  2.) 


Office  under  foreign  or  United  States  government.  A  person  who 
holds  an  office  of  honor  or  profit  under  the  government  of  the  United  States, 
is  not  eligible  as  a  director  of  the  Illinois  Institution  for  the  deaf  and  dumb, 
a  private  corporation  created  by  an  act  of  the  General  Assembly  in  1839.^* 
Under  a  decision  of  the  appellate  court  a  postmaster  receiving  a  salary  of 
more  than  $300  per  year,  cannot  hold  the  office  of  member  of  the  board  of 
trustees  of  a  village.'*  In  the  opinion  of  the  Attorney  General  a  state's 
attorney  cannot  hold  the  office  of  member  of  Congress,  and  neither  a  post- 
master receiving  a  salary  of  more  than  $300  per  year,  nor  a  railway  mail 
clerk,  may  hold  the  office  of  town  clerk.^**  Acceptance  of  a  commission  in 
the  army  of  the  United  States  by  the  Lieutenant  Governor  or  a  state's 
attorney  would,  in  the  view  of  the  Attorney  General,  operate  to  vacate  their 
offices." 


Section  4.  No  person  who  has  been,  or  hereafter  shall  be 
convicted  of  bribery,  perjury  or  other  infamous  crime,  nor  any 
person  who  has  been  or  may  be  a  collector  or  holder  of  public 
moneys,  who  shall  not  have  accounted  for  and  paid  over,  according 
to  law,  all  such  moneys  due  from  him,  shall  be  eligible  to  the  Gene- 
ral Assembly,  or  to  any  office  of  profit  or  trust  in  this  State. 


A  person  is  not  a  defaulter  or  guilty  of  withholding  public  funds  un- 
less he  has  been  adjudged  guilty  by  a  court  or  a  competent  authority. 
Until  there  has  been  a  finding  by  a  court,  or  other  legal  authority,  that 
a  person  is  a  defaulter  he  may,  if  duly  elected  or  appointed  and  otherwise 
qualified,  hold  a  public  office."^ 

33  Report  Attorney  General  1917-18,  p.  755;  People  v  Haas,  145  111.  App.  283 
(1908);  Report  Attorney  General  1914,  p.  1175;  Opinion  of  Attorney  General, 
March   1,    1919;   Report  Attorney   General   1914,   p.    1177. 

S'*  People   V  Haas,   145    111.   App.    283    (190S). 

35  Report  Attorney  General   1914,   p.   1173. 

3«  Report  Attorney   General    1916,    p.    285. 

3' Report  Attorney  General,    1916,   p.   933. 

3s  Dickson    v    People,    17    111.    191    (1855). 

39  People  v  Blake,   144  111.  App.   246    (1908). 

'w*  Report    Attorney    General    1915.    pp.    785,    786.    788,    791;    1914,    p.    1162. 

«  Report  Attorney  General  1917-18,  pp.   757,   800,  811. 

"Cawley   v   People,    95    111.    249    (1880). 


Article  4,  Sections  5,  6  79 

Section  5.  Members  of  the  General  Assembly,  before  they  en- 
ter upon  their  official  duties,  shall  take  and  subscribe  the  following 
oath  or  affirmation :  *'I  do  solemnly  swear  (or  affirm)  that  I  will 
support  the  Constitution  of  the  United  States  and  the  Constitution 
of  the  State  of  Illinois,  and  will  faithfully  discharge  the  duties  of 
Senator  (or  Representative)  according  to  the  best  of  my  ability ; 
and  that  I  have  not,  knowingly  or  intentionally,  paid  or  contributed 
anything,  or  made  any  promise  in  the  nature  of  a  bribe,  to  directly 
or  indirectly  influence  any  vote  at  the  election  at  which  I  was  chos- 
en to  fill  the  said  office,  and  have  not  accepted,  nor  will  I  accept  or 
receive  directly  or  indirectly,  any  money  or  other  valuable  thing, 
from  any  corporation,  company  or  person,  for  any  vote  or  influence 
I  may  give  or  withhold  on  any  bill,  resolution  or  appropriation,  oi^ 
for  any.  other  official  act."  This  oath  shall  be  administered  by  a 
judge  of  the  supreme  or  circuit  court  in  the  hall  of  the  house  to 
which  the  member  is  elected,  and  the  Secretary  of  State  shall  re- 
cord and  file  the  oath  subscribed  by  each  member.  Any  member 
who  shall  refuse  to  take  the  oath  herein  prescribed  shall  forfeit 
his  office,  and  every  member  who  shall  be  convicted  of  having 
sworn  falsely  to  or  of  violating,  his  said  oath,  shall  forfeit  his  office 
and  be  disqualified  thereafter  from  holding  any  office  of  profit  or 
trust  in  this  State. 


(See  article  5,  section  25.) 


Section  6.  The  General  Assembly  shall  apportion  the  State 
every  ten  years,  beginning  with  the  year  one  thousand  eight  hun- 
dred and  seventy-one,  by  dividing  the  population  of  the  State,  as 
ascertained  by  the  federal  census,  by  the  number  fifty-one,  and  the 
quotient  shall  be  the  ratio  of  representation  in  the  Senate.  The 
State  shall  be  divided  into  fifty-one  senatorial  districts,  each  ofj 
which  shall  elect  one  senator,  whose  term  of  office  shall  be  four 
years.  The  Senators  elected  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  seventy-two,  in  districts  bearing  odd  numbers, 
shall  vacate  their  offices  at  the  end  of  two  years,  and  those  elected 
in  districts  bearing  even  numbers,  at  the  end  of  four  years ;  and  va- 
cancies occurring  by  the  expiration  of  term  shall  be  filled  by  the 
election  of  senators  for  the  full  term.  Senatorial  districts  shall  be 
formed  of  contiguous  and  compact  territory,  bounded  by  county 
lines,  and  contain  as  nearly  as  practicable  an  equal  number  of  in- 
habitants; but  no  district  shall  contain  less  than  four-fifths  of  the 
senatorial  ratio.  Counties  containing  not  less  than  the  ratio  and 
three-fourths,  may  be  divided  into  separate  districts,  and  shall  be 
entitled  to  two  Senators,  and  to  one  additional  senator  for  each 
number  of  inhabitants  equal  to  the  ratio,  contained  by  such  counties 
in  excess  of  twice  the  number  of  said  ratio. 


80  Article  4,  Sections  7,  8 

The  question  whether  the  constitutional  requirements  with  reference 
to  compactness  of  territory  and  equality  of  population  in  senatorial  districts 
have  been  applied  at  all,  is  one  which  the  courts  may  finally  determine. 
If  it  is  clear  that  an  apportionment  act  of  the  General  Assembly  does  not 
take  into  consideration  those  requirements,  the  act  will  be  held  void.  On 
the  other  hand,  if  it  is  apparent  that  those  requirements  were  taken  into 
consideration,  the  act  will  be  held  valid  even  though  the  nearest  practic- 
able approximation  to  perfect  compactness  of  territory  and  equality  of 
population  has  not  been  attained.  Accordingly,  an  act  which  observed  the 
senatorial  ratio  required  by  the  constitution,  but  which  provided  for  some 
senatorial  districts  having  a  population  of  25,000  more  than  others,  was  sus- 
tained because  the  court  was  of  the-  opinion  that  the  requirements  of  com- 
pactness of  territory  and  equality  of  population  had  not  been  completely 
ignored.""  (See  discussion  article  6,  section  5,  sub-heading,  "Changes  in 
Supreme   Court   districts"). 

The  General  Assembly  can  make  but  one  apportionment  in  each  ten 
year  period  following  a  Federal  census,  but  more  than  one  apportionment 
may  be  made  in  a  period  of  ten  years.  For  example  there  was  a  Federal 
census  in  1890.  In  1893,  the  General  Assembly  passed  an  apportionment 
act.  In  1898,  the  General  Assembly  passed  another  apportionment  act. 
This  act  was  held  void  because,  in  the  opinion  of  the  Supreme  Court,  the 
General  Assembly,  under  this  section,  can  apportion  but  once  in  each  ten 
year  period  after  a  census,  and  having  apportioned  the  state  in  1893,  it  could 
not  do  so  again  in  1898.^*  In  1900,  there  was  another  census,  and  in  1901 
the  General  Assembly  passed  an  apportionment  act.  It  was  contended  that 
the  act  of  1901  was  void,  because  it  was  passed  less  than  ten  years  after 
the  adoption  of  the  act  of  1893,  but  the  act  of  1901  was  upheld.'' 

There  has  been  no  apportionment  since  1901,  although  the  constitu- 
tion expressly  provides  that  the  state  shall  be  apportioned  every  ten  years. 
(See  Constitutional  Convention  Bulletin  No.  8). 


Sections  7  and  8.  The  House  of  Representatives  shall  consist 
of  three  times  the  number  of  the  members  of  the  Senate,  and  the 
term  of  office  shall  be  two  years.  Three  representatives  shall  be 
elected  in  each  Senatorial  district  at  the  general  election  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy-two,  and  ev- 
ery two  years  thereafter.  In  all  elections  of  representatives  afore- 
said, each  qualified  voter  may  cast  as  many  votes  for  one  candidate 
as  there  are  representatives  to  be  elected,  or  may  distribute  the 
same,  or  equal  parts  thereof,  among  the  candidates,  as  he  shall  see 
fit ;  and  the  candidates  highest  in  votes  shall  be  declared  elected.^^ 

« People  V  Thompson,  155  111.  451,  (1895);  see,  also,  People  v  Carlock  198 
111.   150    (1902). 

"^People   V   Hutchinson,    172   111.    486    (1898). 

« People  V  Carlock,    198   111.   150    (1902). 

*«  Under  the  terms  of  section  12  of  the  schedule,  original  sections  7  and  8 
of  this  article  were  to  be  eliminated  if  the  section  relating  to  minority  repre- 
sentation, which  was  submitted  to  a  separate  vote,  was  adopted  by  the 
voters.  The  separate  section  was  adopted  and  accordingly  replaced  original 
sections   7  and   8,   which  were  as  follows: 

REPRESENTATIVE. 
"Section  7.  The  population  of  the  State,  as  ascertained  by  the  Federal 
census,  shall  be  divided  by  the  number  one  hundred  and  fifty-three,  and  the 
quotient  shall  be  the  ratio  of  representation  in  the  House  of  Representatives. 
Every  county  or  district  shall  be  entitled  to  one  representative,  when  its  popu- 
lation is  three-fifths  of  the  ratio;  if  any  county  has  less  than  three-fifths  of  the 
ratio,  it  shall  be  attached  to  the  adjoining  county  having  the  least  population, 
to  which  no  other  county  has  for  the  same  reason  been  attached,  and  the  two 
shall   constitute  a  separate  district.  Every  county  or  district  having  a  population 


Article  4,  Sections  7,  8  81 


In  general.  The  provisions  of  the  constitution  relating  to  minority 
representation  give  the  voter  the  right  to  cast  three  votes  for  one  candidate 
for  representative  in  the  General  Assembly,  one  vote  for  each  of  three  can- 
didates, one  and  one-half  votes  for  each  of  two  candidates,  or  one  vote  for 
one  candidate  and  two  votes  for  another.*^ 

In  People  v  Nelson,**  it  was  contended  that  since  the  constitution  ex- 
pressly provided  for  cumulative  voting  in  only  two  instances,  (article  4, 
sections  7,  8;  article  11,  section  3)  this  was,  in  effect,  a  denial  of  power  to 
the  General  Assembly  to  provide  for  cumulative  voting  in  any  other  kind 
of  an  election.  The  court,  however,  refused  to  uphold  the  contention,  and 
sustained  an  act  of  the  General  Assembly  providing  for  cumulative  voting 
in  elections   for  drainage   trustees. 


Primary  elections.  The  principal  difficulty  with  reference  to  the  pro- 
visions relating  to  minority  representation  has  arisen  in  connection  with 
the  primary  election  laws.  The  primary  election  law  of  1906  provided 
for  the  nomination  in  the  primary  election  of  only  one  candidate  for  rep- 
resentative in  the  General  Assembly  by  each  political  party.  If  a  political 
party  desired  to  place  more  than  one  candidate  in  the  field,  the  other 
candidate  or  candidates  could  be  nominated  only  by  convention.  The  act  of 
1906  was  held  void  on  the  ground  that  it  was  in  conflict  with  sections  7 
and  8  of  article  4.  "The  right  to  nominate  candidates  for  representative  in 
the  General  Assembly  is  as  important  a  right  to  the  voter  as  the  right  to 
vote  for  said  candidates  after  they  are  nominated  and  is  of  the  same  charac- 
ter, and  if  the  constitution,  as  it  does,  confers  upon  the  voter  the  right  to 
vote  for  one,  two  or  three  candidates  for  representative  in  the  General 
Assembly,  any  primary  election  law,  to  be  valid,  which  provides  for  the 
nomination  of  candidates  for  representative  in  the  General  Assembly,  must 
give  the  voter  the  right  to  participate  in  the  selection  of  all  candidates 
of  his  party  for  representative  in  the  General  Assembly  which  are  to  be 
nominated  by  his  party."^* 

The  primary  election  act  of  1908  authorized  the  senatorial  committee  of 
each  political  party  to  determine  the  number  of  candidates  of  its  party  to 
be  nominated  in  its  district  for  representative  in  the  General  Assembly  and 
provided  that  the  voter  could  cast  one  vote  for  each  of  as  many  candidates 
as  were  to  be  nominated  in  accordance  with  the  determination  of  the  sena- 
torial committee.  If  the  committee  determined  upon  one  candidate,  the 
voter  could  vote  for  only  one  candidate.  If  the  committee  decided  to  have 
two  candidates,  the  voter  could  cast  one  vote  each  for  two  candidates. 
This  act  was  held  void  because  it  deprived  the  voter  of  his  right  to  cumu- 
late his  votes.''° 

not  less  than  the  ratio  and  three-fifths,  shall  be  entitled  to  two  representatives, 
and  for  each  additional  number  of  inhabitants,  equal  to  the  ratio,  one  repre- 
sentative. Counties  having  over  two  hundred  thousand  inhabitants  may  be  di- 
vided into  districts,  each  entitled  to  not  less  than  three  nor  more  than  five 
representatives.  After  the  year  one  thousand  eight  hundred  and  eighty,  the 
whole  population  shall  be  divided  by  the  number  one  hundred  and  fifty-nine, 
and  the  quotient  shall  be  the  ratio  of  representation  in  the  House  of  "Repre- 
sentatives for  the  ensuing  ten  years,  and  six  additional  representatives  shall  be 
added  for  every  five  hundred  thousand  increase  of  population  at  each  decennial 
census   thereafter,    and   be  apportioned   in  the   same   manner  as   above   provided. 

"Section  8.  When  a  county  or  district  shall  have  a  fraction  of  population 
above  what  shall  entitle  it  to  one  representative,  or  more,  according  to  the 
provisions  of  the  foregoing  section,  amounting  to  one-fifth  of  the  ratio,  it 
shall  be  entitled  to  one  additional  representative  in  the  fifth  term  of  each 
decennial  period;  when  such  fraction  is  two-fifths  of  the  ratio,  it  shall  be 
entitled  to  an  additional  representative  in  the  fourth  and  fifth  terms  of  said 
periods;  when  the  fraction  is  three-fifths  of  the  ratio,,  it  shall  be  entitled  to  an 
additional  representative  in  the  first,  second  and  third' terms,  respectively;  when 
the  fraction  is  four-fifths  of  the  ratio,  it  shall  be  entitled  to  an  additional  re- 
presentative  in   the   first,   second,    third   and   fourth   terms,    respectively." 

*7  People   V   Taylor,    257   111.    192    (1913). 

48  133    111.    565    (1890). 

4"  Rouse    V    Thompson.    228    111.    522    (1907). 

«•  People  V    Strassheim,    240    111.    279    (1909). 


82  Article  4,  Sections  7,  8 

In  People  v  Deneen,"^  the  act  of  1910  relating  to  the  nomination  of  mem- 
bers of  the  General  Assembly  was  under  consideration.  Section  11  of  that 
act  is  as  follows:  "At  least  thirty-three  (33)  days  prior  to  the  date  of  the 
April  primary  the  senatorial  committee  Of  each  political  party  shall  meet 
and  by  resolution  fix  and  determine  the  number  of  candidates  to  be  nomi- 
nated by  their  party  at  the  primary  for  representative  in  the  General  As- 
sembly. A  copy  of  said  resolution,  duly  certified  by  the  chairman  and  at- 
tested by  the  secretary  of  the  committee,  shall,  within  five  days  thereafter, 
be  filed  in  the  office  of  the  Secretary  of  State,  and  in  the  office  of  the  county 
clerk  of  each  county  in  the  senatorial  district.  In  all  primaries  for  the 
nomination  of  candidates  for  representatives  in  the  General  Assembly  each 
qualified  primary  elector  may  cast  three  votes  for  one  candidate,  or  may 
distribute  the  same  or  equal  parts  thereof  among  two  candidates  or  three 
candidates,  as  he  shall  see  fit.  And  the  said  candidate  or  candidates  for 
nomination  highest  in  votes  shall  be  declared  nominated  for  the  office  to 
be  filled."  The  democratic  senatorial  committee  of  a  certain  senatorial 
district  decided  that  the  democratic  party  should  have  but  one  candidate 
for  representative  in  the  General  Assembly  from  that  district.  In  the  pri- 
mary election  held  subsequent  to  this  action  by  the  democratic  senatorial 
committee,  one  Espey  received  the  third  highest  number  of  democratic 
votes.  The  state  canvassing  board  refused  to  certify  his  name  as  a  demo- 
cratic candidate  from  that  district.  He,  thereupon,  filed  in  the  Supreme 
Court  an  original  petition  for  a  writ  of  mandamus  to  compel  the  board  to 
certify  him  as  one  of  the  democratic  nominees  whose  name  should  be  placed 
on  the  official  ballot  at  the  next  election.  By  the  decision  of  a  divided  court 
the  writ  was  refused. 

Three  judges  held  that  section  11  was  unconstitutional  because  it  was 
an  attempt  by  the  General  Assembly  to  confer  upon  a  senatorial  committee 
the  power  to  fix  and  determine  the  number  of  candidates  for  representatives 
to  be  nominated  by  a  political  party  in  a  senatorial  district,  thus  depriving 
the  voters  of  their  constitutional  right  to  cast  three  votes  for  one  candidate 
or  to  distribute  their  votes  among  two  or  three  candidates.  These  judges 
were  also  of  the  opinion  that,  if  section  11  were  construed  as  not  giving 
power  to  the  senatorial  committee  to  determine  the  number  of  candidates 
of  the  party,  but  merely  empowering  the  committee  to  make  a  declaration  of 
party  policy  which  would  not  be  binding  upon  the  voters,  it  was  void, 
because  it  would  nullify  the  constitutional  guaranty  of  minority  representa- 
tion. They  held  that,  if  the  electors  were  at  liberty  to  nominate  a  greater 
number  of  candidates  than  had  been  determined  upon  by  the  committee, 
and  if  in  all  districts  where  three  candidates  were  voted  for  by  the  quali- 
fied electors  of  each  political  party,  the  names  of  three  candidates  were  re- 
quired to  be  placed  on  the  official  ballot,  the  practical  effect  would  be  that 
each  political  party  in  each  senatorial  district  would  have  three  candidates 
in  the  field  and  "if  each  party  nominated  three  candidates,  it  would  fre- 
quently, if  not  generally,  happen  that  the  dominant  party  in  a  senatorial  dist- 
rict would  elect  three  candidates  and  the  minority  party  would  be  without 
representation."  Being  of  the  opinion  that  section  11  was  unconstitutional, 
these  judges  held  that  the  writ  of  mandamus  should  not  issue. 

A  fourth  judge  concurred  in  the  view  that  the  writ  of  mandamus  should 
be  denied,  but  his  opinion  was  based  on  an  entirely  different  ground.  He 
agreed  that  if  the  power  of  the  senatorial  committee  under  section  11  was 
that  of  merely  making  a  declaration  of  party  policy,  which  was  not  binding 
on  the  voters,  then  the  section  was  unconstitutional,  because  it  would  nullify 
the  constitutional  guaranty  of  minority  representation.  But  he  was  of  the 
opinion  that  there  was  no  constitutional  limitation  on  the  power  of  the 
General  Assembly  to  empower  the  senatorial  committee  to  determine  the 
number  of  candidates  of  its  party  in  its  senatorial  district.  He  held  that  a 
political  party  has  the  right  to  determine  the  number  of  its  candidates. 
"'The  right  to  cumulate  his  vote  on  the  question  of  the  election  of  repre- 
ss 247   111.   289    (1910). 


Article  4,  Section  9  83 

sentatives  in  the  General  Assembly,  is  a  right  secured  to  the  individual 
voter,  while  the  right  of  minority  representation  is  a  right  secured  to 
political  parties  ...  If  the  party  decides  to  nominate  one  candidate 
for  representative  in  the  General  Assembly  and  each  member  of  such  party 
has  the  right  to  give  one  candidate  three  votes,  or  if  his  party  decides  to 
nominate  two  or  three  candidates  and  he  has  the  right  to  divide  his  three 
votes  between  such  candidates  ...  he  has  not  been  deprived  of  any 
of  his  constitutional  rights     .      .      •" 

The  other  three  judges  held  that  section  11  was  constitutional,  but 
that  the  power  of  the  senatorial  committee  was  only  that  of  declaring  a 
party  policy.  It  was  their  view  that  if  the  committee  decided  on  one  or  two 
candidates,  but  the  voters  voted  for  three  or  more  candidates,  then  the  names 
of  the  three  candidates  receiving  the  highest  number  of  votes  must  go  on 
the  official  ballots  for  ui^e  in  the  election,  and  that  the  effect  of  this  would 
not  be  to  nullify  the  plan  for  minority  representation.  These  judges  held 
that  the  writ  of  mmulamus  should  issue. 

The  different  views  of  the  judges  makes  it  difficult  to  determine  the 
full  purport  of  the  decision  in  People  v  Deneen.  The  court  was  definitely 
of  the  opinion  that  the  General  Assembly  has  no  power  to  pass  a  law,  the 
effect  of  which  will  be  to  nullify  the  constitutional  provisions  concerning 
minority  representation.  This  seems  to  be  the  only  point  on  which  at  least 
four  judges  agreed.  The  effect  of  the  decision,  however,  has  been  to  sustain 
the  act  of  1910.  That  act  is  still  in  force  and  nominations  of  candidates 
for  representatives  in  the  General  Assembly  are  being  made  in  accordance 
with  the  views  of  the  fourth  judge. 

(For  a  discussion  of  the  history  and  working  out  of  the  provisions  re- 
lating to  minority  representation,  see  Constitutional  Conventions  in  Illinois, 
Second  Edition  p.  26;   Constitutional  Convention  Bulletin  No.  8). 


Section  9.  The  sessions  of  the  General  Assembly  shall  com- 
mence at  twelve  o'clock  noon,  on  the  Wednesday  next  after  the  first 
Monday  in  January,  in  the  year  next  ensuing  the  election  of  mem- 
bers thereof,  and  at  no  other  time,  unless  as  provided  by  this  Con- 
stitution. A  majority  of  the  members  elected  to  each  house  shall 
constitute  a  quorum.  Each  house  shall  determine  the  rules  of  its 
proceedings,  and  be  the  judge  of  the  election,  returns  and  qualifi- 
cations of  its  members,  shall  choose  its  own  officers ;  and  the  Senate 
shall  choose  a  temporary  President  to  preside  when  the  Lieutenant 
Governor  shall  not  attend  as  President  or  shall  act  as  governor. 
The  Secretary  of  State  shall  call  the  House  of  Representatives  to 
order  at  the  opening  of  each  new  Assembly,  and  preside  over  it  until 
a  temporary  presiding  officer  thereof  shall  have  been  chosen  and 
shall  have  taken  his  seat.  No  member  shall  be  expelled  by  either 
house,  except  by  a  vote  of  two-thirds  of  all  the  members  elected 
to  that  house,  and  no  member  be  twice  expelled  for  the  same  of- 
fense. Each  house  may  punish  by  imprisonment  any  person,  not 
a  member,  who  shall  be  guilty  of  disrespect  to  the  house  by  disor- 
derly or  contemptuous  behavior  in  its  presence.  But  no  such  im- 
prisonment shall  extend  beyond  twenty-four  hours  at  one  time,  un- 
less the  person  shall  persist  in  such  disorderly  or  contemptuous 
behavior. 


The  Supreme  Court  has  never  been  called  upon  to  construe  this  section 
of  the  constitution.  It  has  been  interpreted,  however,  by  the  appellate  court 


84  Article  4,  Section  10 

and  the  Attorney  General.  Bach  house  of  the  General  Assembly  is  the  sole 
judge  of  the  qualifications  of  its  members/'-  The  right  to  a  seat  in  either 
house  of  the  General  Assembly  can  be  questioned  only  by  the  members  of 
that  house/^  A  majority  of  a  quorum  in  either  house  may  seat  or  unseat 
members  as  it  sees  fit,  and  its  action  is  not  subject  to  judicial  review." 
This,  however,  has  been  held  not  to  deprive  a  court  of  the  power  to  de- 
termine whether  or  not  a  member  of  the  General  Assembly  has  resigned. 
Thus  in  People  v  Haas,"'^  a  senator  was  elected  clerk  of  the  municipal  court 
of  the  city  of  Chicago  and  entered  upon  his  duties  as  clerk  and  the  question 
presented  was  whether  or  not  a  writ  of  mandamus  should  issue  against 
the  county  clerk  of  Cook  County  to  compel  thRt  official  to  notify  the  Gov- 
ernor that  there  was  a  vacancy  in  the  senate.  The  writ  was  awarded,  the 
appellate  court  holding  that,  while  the  senate  was  the  sole  judge  of  the 
qualifications  of  its  members,  the  courts  could,  nevertheless,  determine 
whether  or  not  a  member  of  the  General  Assembly  had  resigned,  and  in 
view  of  the  fact  that  section  3  of  article  4  provides  that  no  clerk  of  a  court 
shall  have  a  seat  in  the  General  Assembly,  it  was  clear  that  the  senator 
in  accepting  the  office  of  clerk  of  the  municipal  court,  resigned  his  seat 
in  the  senate.  On  the  other  hand,  however,  the  Attorney  General,  in  191fi, 
ruled  that  it  was  a  matter  of  serious  doubt  whether  or  not  the  Governor 
had  the  power  to  determine  that  the  seat  of  a  senator,  who  was  elected  and 
qualified  as  a  judge  of  the  municipal  court,  was  vacant,  and  that  a  special 
election  to  fill  the  vacancy  should  be  called.""  (See  discussion  article  4  section 
2  and  section  3,  subheading,  "Qualifications  of  members  of  the  General 
Assembly.") 

In   1915  the   Attorney   General   rendered   an   opinion   holding   that   the 
speaker  of  the  house  of  representatives  must  be  a  member  of  that  body." 


Section  10.  The  doors  of  each  house  and  of  committees  of  the 
whole  shall  be  kept  open,  except  in  such  cases  as,  in  the  opinion  of 
the  house,  require  secrecy.  Neither  house  shall,  without  the  con- 
sent of  the  other,  adjourn  for  more  than  two  days,  or  to  any  other 
place  than  that  in  which  the  two  houses  shall  be  sitting.  Each 
house  shall  keep  a  journal  of  its  proceedings,  which  shall  be  pub- 
lished. In  the  Senate  at  the  request  of  two  members,  and  in  thd 
House  at  the  request  of  five  members,  the  yeas  and  nays  shall  be 
taken  on  any  question,  and  entered  upon  the  journal.  Any  twoi 
members  of  either  house  shall  have  liberty  to  dissent  from  and 
protest,  in  respectful  language  against  any  act  or  resolution  which 
they  think  injurious  to  the  public  or  to  any  individual,  and  have 
the  reasons  of  their  dissent  entered  upon  the  journals. 


Adjournment.  Neither  house  of  the  General  Assembly  can  adjourn 
for  more  than  two  days  without  the  consent  of  the  other,  and  in  the  event  of 
disagreement  between  the  two  houses  as  to  the  time  of  adjournment,  the 
Governor,  by  virtue  of  the  power  conferred  upon  him  by  section  9  of  article 
5,  "may,  upon  the  same  being  certified  to  him  by  the  house  first  moving 
the  adjournment,  adjourn  the  General  Assembly  to  such  time  as  he  thinks 
proper,  not  beyond  the  first  day  of  the  next  regular  session."  The  Attorney 

52  Report  Attorney  General  1916,  pp.  135,  178,  287;  People  v  Haas,  145  IlL 
App.   283    (1908). 

68  Report   Attorney   General    1912.   pp.    662,    1356. 

6*  Report   Attorney    General   1915,    p.    455. 

^"•145    111.   App.    283    (1908). 

5"  Report  Attorney  General  1916,  p.  135. 

"  Report  Attorney  General  1915,  p.  144. 


Article  4,  Sections  11,  12  85 

General  has  held  that  after  the  existence  of  a  disagreement  has  been  prop- 
erly certified  to  the  Governor,  the  latter  is  then  the  sole  judge  as  to  whether 
or  not  a  disagreement  exists,  and  his  decision  is  not  subject  to  review.^ 

In  the  case  of  People  v  Hatch,'^  which  arose  under  the  constitution 
of  1848,  it  appeared  that  there  were  no  entries  on  the  journals  of  either 
house  for  a  period  of  ten  days,  and  the  journals  failed  to  show  any  resolu- 
tion authorizing  an  adjournment  for  that  period  of  time.  The  court  held 
that  in,  view  of  the  provision  of  the  constitution  of  1848  forbidding  adjourn- 
ment by  one  house  for  more  than  two  days  without  the  consent  of  the  other, 
it  must  be  presumed  that  the  General  Assembly  had  adjourned  sifie  die 
and  could  not  again  convene  unless  called  into  special  session  by  the  Gov- 
ernor. 


Journals.  The  case  of  People  v.  Hatch,  above  referred  to,  holds  that 
each  house  must  keep  a  journal,  for  the  reason  that  a  legislative  procesding 
cannot  be  established  without  a  journal.  If  there  is  no  journal,  there  is 
no  legislative  body.  The  Hatch  case  arose  under  the  constitution  of  1848, 
but  the  provisions  of  the  constitutions  of  1848  and  1870  on  this  subject 
are  similar. 

The  constitution  does  not  require  that  the  officers  of  the  General  As- 
sembly shall  sign  the  journal  or  that  the  copying  clerk  shall  certify  to  the 
accuracy  of  his  work.*"^ 

The  journals  must  show  that  every  constitutional  requirement  in  con- 
nection with  the  passage  of  a  bill,  has  been  complied  with;  otherwise,  the 
bill  will  be  void.  In  some  instances,  however,  compliance  with  a  constitution- 
al requirement  may  be  inferred  from  a  recital  in  the  journal.  (For  a  more 
complete  statement  with  reference  to  this  question,  see  discussion  article 
4,  section  13,  subheading,   "Necessity  for  journal  entries") 


Section  11.  The  style  of  the  laws  of  this  State  shall  be;  '*Be 
it  enacted  by  the  People  of  the  State  of  Illinois,  represented  in  the 
General  Assembly." 


A  joint  resolution  cannot  have  the  force  of  a  law,  because  it  does  not 
have  an  enacting  clause.  Thus,  a  joint  resolution  which  directed  the  com- 
missioners of  state  contracts  to  purchase  a  certain  number  of  books  for 
distribution  among  the  justices  of  the  peace  and  township  offifficers  of  the 
state,  was  held  inoperative  and  void.*^  But  an  act  consisting  of  several 
sections  need  not  contain  an  enacting  clause  for  each  section.  An  enact- 
ing clause  inserted  just  before  the  first  section  of  an  act,  is  no  more  a  part 
of  the  first  section  than  it  is  a  part  of  the  other  sections."^ 

This  section  of  the  constitution  was  construed  strictly  by  the  Attorney 
General  in  1910.  In  his  judgment,  a  bill  is  unconstitutional  if  it  contains 
an  enacting  clause  which  varies  in  any  degree  from  the  form  specified  m  the 
constitution.  Thus  he  held  unconstitutional  a  bill  with  the  following  enacting 
clause:  "Be  it  enacted  by  the  People  of  the  State  of  Illinois,  represented  in 
the  Forty-sixth  General  Assembly".*"     (See  discussion  article  6,  section  33.) 


Section  12.     Bills  may  originate  in  either  house  but  may  be 
altered,  amended  or  rejected  by  the  other ;  and  on  the  final  passage 

^  Report  Attorney  General   1912,  p.   73. 
53  33   111.   9    (1863). 

«« Miller  v  Goodwin,   70  111.   659   (1873). 

«iBurritt  v  Commissioners  of  State  Contracts,  120  111.  322    (1887);  see  Wen- 
ner  v  Thornton,  98  111.  156   (1881). 

62  Pierce   v   Vittum,    193    111.    192'    (1901). 
«3  Report  Attorney   General   1910,   p.    77. 


86  Article  4,  Section  12 

of  all  bills,  the  vote  shall  be  by  yeas  and  nays,  upon  each  bill  sep- 
arately, and  shall  be  entered  upon  the  journal;  and  no  bill  shall 
become  a  law  without  the  concurrence  of  a  majority  of  the  mem- 
bers elected  to  each  house. 


Yeas  and  nays.  While  the  constitution  requires  that  the  yeas  and 
nays  shall  be  entered  on  the  journal  on  the  final  passage  of  a  bill, 
the  fact  that  the  journal  fails  to  state  that  there  were  no  negative  votes, 
will  not  render  the  bill  unconstitutional,  if  the  journal  shows  that  it  re- 
ceived a  constitutional  majority  of  votes.  Under  such  circumstances,  it 
will  be  presumed  that  there  were  no  negative  votes." 

(For  a  more  complete  statement  with  reference  to  the  necessity  for 
journal  entries  showing  a  compliance  with  constitutional  requirements  in 
connection  with  the  passage  of  bills,  see  discussion  article  4,  section  13, 
subheading   "Necessity   for  journal   entries.") 


Separate  vote  on  each  bill.  This  section  does  not  require  a  separate 
vote  on  each  section  or  provision  of  a  bill.  Thus,  the  bill  providing  for  a 
system  of  hard  roads  which  authorized  an  expenditure  of  several  millions  of 
aoilars,  and  provided  for  a  tax  to  defray  the  expenditures  so  authorized, 
IS  not  unconstitutional  because  only  one  yea  and  nay  vote  was  had  there- 
on."" 


Concurrence  by  a  majority  elected.  If  a  bill  which  is  passed  by  both 
houses,  contains  an  amendment  or  a  provision  not  concurred  in  by  one 
house,  it  is  unconstitutional.  A  bill  cannot  become  a  law  without  the  con- 
currence of  a  majority  of  the  members  elected  to  each  house.*"'  However, 
it  seems  that  this  rule  does  not  apply  to  titles  of  bills.  Oh  the  theory  that 
the  title  of  a  bill  is  not  a  part  thereof  but  a  mere  convenience  for  the  pur- 
poses of  legislation,  bills  having  titles  which  were  not  concurred  in  by  a 
majority  of  the  members  elected  to  both  houses,  have  been  sustained."  For 
example,  the  house  of  representatives  passed  a  bill  entitled,  "An  Act  to 
prevent  the  keeping  of  gaming  houses."  In  the  senate,  the  words,  "and 
to  prevent  gaming,"  were  added  to  the  title.  The  house  of  representatives 
did  not  concur  in  the  amendment  to  the  title,  but  the  bill  was,  nevertheless, 
sustained.*^ 

What  is  a  concurrence?  It  has  been  held  that  a  concurrence  may  be 
had  even  though  one  house  does  not  vote  expressly  on  the  question  of  passing 
the  bill.  In  People  v  Edmands,*'"  the  facts  were  as  follows:  The  house  of 
representatives  passed  a  bill.  The  senate  adopted  certain  amendments  to 
the  bill  and  then  passed  the  bill  as  amended.  The  house  of  representatives 
refused  to  concur  in  the  senate  amendments.  The  senate  then  receded  from 
its  amendments  by  a  yea  and  nay  vote  of  30  to  2.  The  vote  on  the  motion 
to  recede  was  entered  on  the  journals.  Nothing  more  was  done  by  either 
house  with  reference  to  the  bill,  and  the  bill,  as  it  passed  the  house  of  rep- 
resentatives, was  acted  upon  favorably  by  the  Governor.  The  question 
presented  was  whether  or  not  the  bill  as  it  passed  the  house  of  represen- 
tatives was  a  valid  law.  The  court  held  that  it  was  valid  on  the  ground 
that  when  the  senate  receded  from  the  amendments  by  a  yea  and  nay  vote 
of  more  than  a  majority  of  the  number  of  senators  elected,  the  vote  being 
entered  on  the  journals,  it  evidenced  an  intention  on  the  part  of  the  sen- 

«*  People  V  Bowman,   247   111.   276    (1910). 
65  Mitchell    V.    Lowden.    288    111.    327    (1919). 
««Veto  Messages,  1911,  p.  16. 

e^Larrison  v  P.  A.  and  D.  R.  R.  Co.,   77  111.   11    (1875);   Johnson  v  People.   83 
111.    431     (1876). 

"spiummer    v    People,    74    111.    361    (1874). 
«9  252  111.  108    (1911). 


Article  4,  Section  13  87 

ate  to  pass  the  bill  in  the  form  that  it  passed  the  house  of  representatives, 
and  that  the  vote  on  the  motion  to  recede  was,  in  effect,  a  vote  by  the 
senate  on  the  final  passage  of  the  bill  as  it  passed  the  house  of  represen- 
tatives. Three  judges,  however,  filed  a  vigorous  dissenting  opinion,  on  the 
ground,  that  there  never  was  a  vote  on  final  passage  in  the  senate  and  that, 
therefore,  the  bill  as  it  passed  the  house  of  representatives  never  became  a 
law.  A  similar  situation  arose  in  the  case  of  People  v  DeWolf,'"  and  the 
court  reached  an  opposite  conclusion,  but  in  that  case  the  motion  to  recede 
from  amendments  was  adopted  by  the  votes  of  less  than  a  constitutional 
majority. 


Section  13.  Every  bill  shall  be  read  at  large  on  three  different 
days,  in  each  house ;  and  the  bill  and  all  amendments  thereto  shall 
be  printed  before  the  vote  is  taken  on  its  final  passage ;  and  every 
bill  having  passed  both  houses,  shall  be  signed  by  the  Speakers 
thereof.  No  act  hereafter  passed  shall  embrace  more  than  one  sub- 
ject, and  that  shall  be  expressed  in  the  title.  But  if  any  subject 
shall  be  embraced  in  an  act  which  shall  not  be  expressed  in  the  title, 
such  act  shall  be  void  only  as  to  so  much  thereof  as  shall  not  bet 
so  expressed ;  and  no  law  shall  be  revived  or  amended  by  reference 
to  its  title  only,  but  the  law  revived,  or  the  section  amended,  shall 
be  inserted  at  length  in  the  new  act.  And  no  act  of  the  General 
Assembly  shall  take  effect  until  the  first  day  of  July  next  after  its 
passage,  unless,  in  case  of  emergency,  (which  emergency  shall  bq 
expressed  in  the  preamble  or  body  of  the  act),  the  General  Assem- 
bly shall,  by  a  vote  of  two-thirds  of  all  the  members  elected  to  each 
house,  otherwise  direct. 


Necessity  for  journal  entries.  In  some  jurisdictions  the  journals  can- 
not be  resorted  to  for  the  purpose  of  showing  that  a  bill  duly  signed  by  the 
presiding  officers  of  the  two  houses  of  the  legislative  body  was  not  passed 
in  full  compliance  with  the  requirements  of  the  constitution.  The  basis  of 
this  rule  is  that  when  a  bill  is  signed  by  the  presiding  oflEicers,  they  certify 
that  all  constitutional  requirements  have  been  complied  with,  and  under 
such  circumstances,  compliance  is  conclusively  presumed.  The  rule  is 
well  settled  in  Illinois,  however,  that  the  signing  of  a  bill  by  the  presiding 
officers  of  the  two  houses  of  the  General  Assembly  does  not  raise  a  conclu- 
sive presumption  as  to  its  proper  passage.  The  journals  of  the  two  houses 
may  be  consulted  to  ascertain  whether  or  not  constitutional  requirements 
have  been  complied  with  in  connection  with  the  passage  of  bills,  such  as  the 
requirements  with  reference  to  reading,  printing,  and  yea  and  nay  vote 
to  be  entered  on  the  journal."  It  is  also  well  settled  that  the  "parliamentary 
history  of  an  act  or  bill  in  the  legislative  journals  is  the  only  evidence  that 
is  recognized  by  the  courts  in  this  state,  and  the  journals  cannot  be  aided 
or  contradicted  by  other  documents  or  evidence  of  any  kind";'^  and  that 
there  is  no  necessity,  in  order  to  make  the  journals  competent  evidence, 
that  they  be  signed  by  the  presiding  officers,  or  that  the  copying  clerk  cer- 
tify as  to  the  accuracy  of  his  work." 

In  the  early  case  of  Spangler  v  Jacoby,^*  which  arose  under  the  con- 
stitution of  1848,  the  court  held  that  every  constitutional  requirement   in 

7«62  111.  253  (1871). 

^Spangler  v  Jacoby,  14  111.  297  (1853);  Nieberger  v  McCullough,  253  111. 
512    (1912). 

"2  People  V  Brady,   262   111.   578    (1914). 
73  Miller   v    Goodwin,    70    111.    659    (1873). 
7*  14   111.   297    (1853). 


88  Article  4,  Section  13 

connection  with  the  passage  of  a  bill,  must  affirmatively  appear  from  the 
journals  to  have  been  complied  with,  and  in  the  event  of  the  failure  of  the 
journals  to  show  affirmatively  a  compliance  with  such  requirements,  it 
would  be  conclusively  presumed  that  the  bill  was  not  passed  in  conformity 
with  the  constitution  and  was,  therefore,  unconstitutional.  Some  steps 
relating  to  the  passage  of  bills  are  expressly  required  by  the  constitution 
to  be  entered  on  the  journals.  For  example,  the  present  constitution  expressly 
provides  that  the  yea  and  nay  vote  on  final  passage  shall  be  entered  on  the 
journals  (article  4,  section  12),  but  while  the  constitution  requires  that 
bills  shall  be  read  on  three  different  days  and  shall  be  printed,  together 
with  all  amendments,  before  final  passage  (article  4,  section  13),  it  does 
not  expressly  require  that  the  journals  show  the  reading  and  printing  of 
bills.  The  Spangler  case  made  no  distinction  between  these  two  classes  of 
requirements.  Seven  years  later,  however,  the  court  expressly  held  that  only 
those  acts  in  connection  with  the  passage  of  bills  which  are  by  the  constitu- 
tion expressly  required  to  be  entered  on  the  journals,  such  as  the  yeas  and 
nays,  need  be  entered  on  the  journals,  and  that  all  other  requirements  will 
be  presumed  to  have  been  complied  with  unless  it  appears  affirmatively 
from  the  journals  that  there  was  no  compliance  with  respect  to  them.'° 
This  later  decision,  however,  was  abandoned  in  the  case  of  Neiberger  v 
McCuUough,^^  where  the  court  held  that  unless  it  appears  from  the  journals 
affirmatively  that  every  constitutional  requirement  in  connection  with  the 
passage  of  a  bill,  whether  expressly  required  by  the  constitution  to  be 
entered  on  the  journals  or  not,  has  been  complied  with,  a  conclusive  pre- 
sumption would  arise  that  the  bill  was  not  passed  in  conformity  with  the 
constitution. 

In  1915,  the  decision  in  the  Neiberger  case  was  modified.  In  Drago- 
vich  V  Iroquois  Iron  Company,"  the  court  held  that  "where  the  constitu- 
tion does  not  expressly  require  a  fact  to  be  recorded  on  the  journals,  and  it 
can  be  inferred  from  a  recital  in  the  journals  that  such  fact  existed  or  such 
step  was  taken,  then  the  presumption  will  be  indulged  that  such  fact  did 
exist  or  such  step  was  taken,"  and  this  decision  has  been  followed  in  the 
later  cases. '^  In  the  Dragovich  case  a  bill  was  amended  in  the  house  of 
representatives  and  the  journal  contained  a  statement  that  the  amendments 
"were  ordered  printed  and  engrossed."  This  was  the  only  entry  in  the 
journal  concerning  the  printing  of  the  amendments.  The  court  held  that  it 
could  be  inferred  from  the  entry  "were  ordered  printed  and  engrossed",  that 
this  step  had  been  taken.  A  somewhat  similar  situation  is  presented  by 
the  case  of  People  v  Brady.'*  There  a  bill  was  amended  in  the  senate. 
The  journal  contained  the  following  entry:  "The  bill  having  been  printed 
was  taken  up  and  read  at  large  a  third  time."  The  court  held  that  the  word 
"bill"  as  used  in  the  journal  entry,  included  amendments  to  the  bill  and 
that,  therefore,  the  journal  did  show  that  the  amendments  were  printed 
before  final  passage.  However,  if  the  journals  show  affirmatively  that  a 
certain  constitutional  requirement  has  not  been  complied  with  then  the 
bill  must  be  held  not  to  have  been  passed  in  conformity  with  the  consti- 
tution.«« 

The  effect  of  these  decisions  is  that  (1)  the  journals  are  competent 
evidence  to  show  that  a  bill  was  not  passed  in  conformity  with  the  consti- 
tution; (2)  that  no  other  evidence  is  admissible  for  that  purpose;  (3)  that 
a  step  expressly  required  by  the  constitution  to  be  entered  on  the  journals 
must  affirmatively  appear  from  the  journals  to  have  been  taken;  and  (4)  that 
a  step  not  expressly  required  by  the  constitution  to  be  entered  on  the  jour- 
nals, will  be  presumed  to  have  been  taken,  if  there  is  a  recital  in  the  jour- 
's Board  of   Supervisors  v   People,    25   111.   181    (1860). 

7«253    111.    312    (1912);    see,    also.   McAullffe    v   O'Connell.    258    111.    186    (1913). 

77  269  111.  478  (1915);  see.  also,  Chicago  Telephone  Co.  v  Northwestern  Tele- 
phone  Co.,    199    111.    324    (1902). 

7"  People  v  LaSalle  Street  Bank,  269  111.  518  (1915);  People  v  Board  of  Den- 
tal  Examiners.    278    111.    144    (1917). 

70  262  111.   578    (1914). 

s*  People  V  Board  of  Dental   Examiners.   278   111.   144    (1917). 


Article  4,  Section  13  89 

nals  from  which  it  may  be  inferred  that  the  step  was  taken,  and  if  the 
journals  do  not  expressly  show  that  the  step  was  not  taken. 

The  case  of  People  v  Bowman  *^  raises  some  doubt  as  to  the  correct- 
ness of  rule  (3).  The  constitution  expressly  requires  the  yea  and  nay  vote 
on  final  passage  to  be  entered  on  the  journals  (article  4,  section  12).  In 
that  case  a  bill  on  final  passage  in  the  senate  received  34  favorable  votes, 
more  than  a  constitutional  majority.  The  journal  failed  to  record  any  neg- 
ative votes  and  failed  to  state  that  there  were  no  negative  votes.  The  court 
held,  however,  that  the  silence  of  the  journal  in  that  respect  was  evidence 
that  there  were  no  negative  votes,  and  that  the  "effect  of  the  record  in  the 
journal  is  that  the  bill  was  passed  by  a  vote  of  thirty-four  yeas  and  no  nays." 


Reading.  Bills  must  be  read  on  three  different  days  in  each  house, 
and  a  failure  to  do  so  will  render  the  bill  unconstitutional.^^  This  does  not 
mean,  however,  that  amendments  to  bills  must  be  read  on  three  different 
days  in  each  house.**^  In  People  v  LaS-alle  Street  Bank,***  however,  the  court, 
while  holding  that  amendments  to  bills  need  not  be  read  on  three  different 
days,  intimates  that  if  the  amendments  are  not  germane  to  the  general  sub- 
ject of  the  bill  as  originally  introduced,  it  might  be  necessary  to  read  the 
bill  as  amended  on  three  different  days. 

(For  statement  as  to  the  necessity  for  journal  entries  showing  compli- 
ance with  constitutional  requirement  concerning  reading,  see  discussion 
preceding  sub-heading.) 


Printing.  Bills  and  amendments  thereto  must  be  printed  before  the 
vote  is  taken  on  final  passage.  Failure  to  comply  with  the  constitution  in 
this  respect  prevents  the  constitutional  passage  of  a  bill.^'  The  rule  with 
reference  to  printing  applies  to  amendments  contained  in  conference  com- 
mittee reports.*"  But  the  failure  to  print  a  conference  committee  amend- 
ment does  not  necessarily  invalidate  the  whole  bill.  Unless  the  unprinted 
amendment  and  the  remainder  of  the  bill  "are  so  connected  and  dependent 
upon  each  other  that  it  cannot  be  presumed  that  the  legislature  would  have 
passed  the  one  without  the  other,"  only  the  amendment  will  be  held  void.^^ 

This  provision  of  the  constitution,  however,  does  not  require  the  re- 
printing of  a  bill  and  amendments  when  jt  is  returned  to  the  house  in  which 
it  originated  for  concurrence  in  amendments  adopted  by  the  other  house. 
The  constitutional  provision  is  complied  with  when  the  bill  and  amend- 
ments thereto  are  printed  before  final  passage  in  each  house.  If  a  bill  which 
was  properly  printed  in  the  senate  before  final  passage  in  that  branch  of  the 
General  Assembly,  is  amended  by  the  house  of  representatives  and  properly 
printed  before  final  passage  in  the  house  of  representatives,  there  is  no  need 
for  reprinting  the  bill  and  the  house  amendments  in  the  senate  when  the 
bill  is  returned  to  the  senate  for  concurrence  in  the  house  amendments.®* 

(For  statement  as  to  the  necessity  for  journal  entries  showing  com- 
pliance with  constitutional  requirement  concerning  printing,  see  discussion 
preceding   subheading,   "Necessity   for  journal  entries"). 


Signatures  of  speakers.  The  provision  of  the  constitution  requiring 
the  signatures  of  the  presiding  officers  is  mandatory  and  not  directory. 
Thus,  a  bill  which  is  not  signed  by  the  Lieutenant  Governor,  the  presiding 
officer  or  speaker  of  the  senate,  cannot  become  a  law.^" 

81247    111.    276    (1910). 

«-I.  C.  R.  R.  Co.  V  People,  143  111.  434  (1892):  People  v  Board  of  Dental 
Examiners,  278  111.  144   (1917):  Veto  Message  No.  12   (1899). 

83  People  V  Wallace.   70   111.   680    (1873);   People  v  Brady,   262   111.   578    (1914). 

«4  269    111.    518    (1915). 

ssNiebergrer  v  McCullough,  253  111.  312  (1912);  McAuliffe  v  O'Oonnell  258 
111.    186    (1913);    Richardson    v    Sears.    Roebuck   &   Co.    271    111.    325    (1916). 

soNieberger   v    McCullough,    253    111.    312    (1912). 

8T  People  V  LaSalle  Street  Bank,   269  111.  518    (1915). 

8«  People  V   McWeeney,    259   111.    161    (1913). 

«» Lynch  V  Hutchinson,   219   111.   193    (1906). 


90  Article  4,  Section  13 

Titles.  That  part  of  section  13  of  article  4  which  will  be  considered 
in  this  sub-heading,  is  as  follows:  "No  act  hereafter  passed  shall  embrace 
more  than  one  subject,  and  that  shall  be  expressed  in  the  title.  But  if  any 
subject  shall  be  embraced  in  an  act  which  shall  not  be  expressed  in  the  title, 
such  act  shall  be  void  only  as  to  so  much  thereof  as  shall  not  be  so  ex- 
pressed." This  constitutional  limitation  first  made  its  appearance  in  the 
constitution  of  1848  (article  3,  section  23)  but  its  application  in  the  earlier 
constitution  was  limited  to  private  and  local  laws.  The  purpose  of  the 
provision  in  the  second  constitution  was  to  restrict  the  passage  of  private, 
local  and  special  legislation.  (See  Constitutional  Conventions  in  Illinois, 
Second  Edition,  pp.  14,18.)  The  same  general  rule  of  construction  has  been 
followed  with  reference  to  the  two  constitutional  limitations,  and  for  that 
reason,  in  the  subsequent  discussion,  no  mention  will  be  made  of  the  cases 
dealing  with  the  provision  of  the  constitution  of  1848. 

In  General. 

In  most  cases  in  which  the  validity  of  a  statute  is  attacked  on  the 
ground  that  it  violates  this  provision  of  the  constitution,  the  basis  of  at- 
tack is  that  the  body  of  the  act  contains  provisions  not  covered  by  the 
title;  that  is.  that  the  act  contains  a  subject  not  expressed  in  the  title.  On 
this  point  the  Supreme  Court  has  held  that  an  act  does  not  contain  a 
subject  not  expressed  in  the  title  "  if  all  the  provisions  relate  to  the  one 
subject  indicated  in  the  title  and  are  parts  of  it,  or  incident  to  it,  or 
reasonably  connected  with  it,  or  in  some  reasonable  sense  auxiliary  to  the 
object  in  view"."  An  act  does  not  contain  two  subjects  when  all  of  its 
provisions  are  germane  to  its  title.  "Any  matter  or  thing  which  may 
reasonably  be  said  to  be  subservient  to  the  general  subject  or  purpose  will 
be  germane  and  may  be  properly  included  in  the  law."^^  "Every  act  must 
embrace  but  a  single  subject,  but  it  may  include  other  provisions  not 
foreign  to  the  general  subject,  which  legitimately  tend  to  accomplish  the 
legislative  purpose  as  to  that  subject.  An  act  may  contain  many  pro- 
visions and  details  for  the  carrying  out  of  its  purpose.  The  object  of  this 
provision  of  the  constitution  is  to  prevent  the  joining  in  one  act  of  in- 
congruous or  unrelated  matters.  It  was  not  its  design  to  embarrass  legislation 
by  making  laws  unnecessarily  restrictive  in  their  scope  and  operation  or 
to  require  that  its  title  should  set  forth  a  detailed  statement  or  index  of 
the  contents  of  the  act."  *^  • 

A  provision  authorizing  a  tax  levy  in  an  act  entitled  "An  Act  to  revise 
the  law  in  relation  to  firemen's  pension  funds,"  is  germane  to  the  title 
and  is  a  subject  expressed  in  the  title.®"  Provisions  prescribing  the  methods 
of  assessing  property  and  collecting  taxes  and  fixing  the  tax  rate  are  all 
included  in  the  title,  "An  Act  in  regard  to  the  assessment  and  collection  of 
municipal  taxes."®*  Provisions  establishing  a  civil  service  system  for 
counties  of  a  certain  class  are  germane  to  an  act,  the  title  of  which  is 
"An  Act  to  revise  the  law  in  relation  to  counties."'^  The  Criminal  Code, 
"An  Act  to  revise  the  law  in  relation  to  criminal  jurisprudence,"  authorized 
a  person  losing  money  by  gambling,  or  some  third  person,  to  sue  for  its 
recovery.  It  was  contended  that  this  provision  of  the  Criminal  Code  re- 
lated to  civil  suits  and  that  the  provision  was  not  within  the  title,  but  the 
court  held  that  it  was  a  subject  expressed  in  the  title.  The  provision,  in 
effect,  prescribed  a  punishment  for  the  gambler  and,  therefore,  was  within 

»» Ritchie  v  People,  155  111.  98  (1895);  see,  also,  Hudnall  y  Ham  172  111  76 
(1898);  Muel  v  People.  198  111.  258  (1902);  People  v  Huff,  249  111.  164  (1911); 
Mitchell    v    Lowden.    288    111.    327     (1919).  ^         _        ^  .^.  ,      .^o    n, 

»i  People  v  Sargent,  254  111.  514  (1912);  see,  also.  People  v  Kirk,  162  111. 
138  (1896);  Boehm  v  Hertz,  182  111.  154  (1899);  People  v  McBride,  234  111.  146 
(1908);  People  v  Price,  257  111.  587  (1913);  People  v  Stokes,  281  111.  159  (i917); 
People   v   Ankrum,    286   111.   319    (1919). 

93  American  Badge  Co.  v  Lena  Park  Improvement  Association,  24b  111.  589 
(1910). 

93  People  v  Huey,   277  111.  561   (1917). 

94  Manchester   v    People.    178    111.    285    (1899). 

95  Morrison  v  People,    196   111.   454    (1902). 


Article  4,  Section  13  91 

the  meaning  of  the  term  "criminal  jurisprudence."^^  And  "An  Act  to  pro- 
vide for  holding  primary  elections  by  political  parties"  may  contain  pro- 
visions for  the  election  of  managing  committees  for  political  parties,  be- 
cause the  election  of  such  committees  is  germane  to  the  general  subject  ex- 
pressed in  the  title.^' 

An  Act  entitled  "An  Act  to  provide  for  the  holding  of  primary  elec- 
tions of  delegates  to  nominating  conventions"  cannot  contain  a  section  pro- 
viding, for  primary  elections  for  candidates  for  office.  Such  a  provision 
would  constitute  a  subject  not  expressed  in  the  title.^^  Provisions  in  an 
act,  the  title  of  which  is  "An  Act  providing  for  the  payment  by  the  County 
of  Cook  of  further  compensation  to  the  State's  Attorney  of  said  county," 
depriving  the  State's  Attorney  of  fees  allowed  him  under  another  act, 
are  unconstitutional,  as  being  a  subject  not  expressed  in  the  title.^^  And 
a  city  cannot  be  given  power  to  fix  gas  rates  in  an  act  bearing  the  title, 
"An  Act  in  relation  to  gas  companies"  for  that  would  be  a  subject  not 
expressed  in  the  title.^ 

The  title  of  an  act  may  be  so  restricted  that  it  will  not  include  a 
subject  that  might  well  have  been  included  in  a  broader  or  more  general 
title.  Thus,  an  act  entitled,  "An  Act  to  provide  for  the  holding  of  pri- 
mary elections  of  delegates  to  nominating  conventions,"  was  held  not  broad 
enough  to  include  provisions  authorizing  the  nomination  of  candidates 
for  office  in  primary  elections,  although  the  court  said  that  it  would  have 
been  a  simple  matter  to  have  framed  a  title  which  would  have  covered  both 
the  election  of  delegates  to  nominating  conventions  and  the  nomination  of 
candidates  for  office.  The  court  pointed  out  that  while  an  act  entitled, 
"An  Act  to  define  and  punish  larceny,"  could  not  include  provisions  re- 
lating to  robbery,  an  act  entitled,  "An  Act  to  revise  the  law  in  relation  to 
criminal  jurisprudence,"  would  cover  both  larceny  and  robbery.^ 

A  title,  however,  must  not  be  so  broad  that  it  will  not  give  a  fair  idea 
of  the  substance  of  the  body  of  a  bill.  "The  title  to  an  act  and  the  act  must 
correspond,  not  literally  but  substantially,  and  while  the  title  may  be 
couched  in  general  terms,  to  be  sufficient  it  must  fairly  point  out  the  sub- 
ject matter  of  the  act  which  is  to  follow  it."'  In  other  words,  the  subject  of 
the  act  must  be  fairly  expressed  in  the  title.  Thus,  an  act  entitled,  "An 
Act  for  the  punishment  of  crimes  against  children,"  is  unconstitutional,  be- 
cause "it  does  not  contain  an  expression,  even  in  the  most  general  terms,  of 
the  body  of  the  act  .  .  .  One  reading  this  title  would  have  no  concep- 
tion of  what  might  be  expected  in  the  body  of  the  act."^  Comprehensiveness 
in  the  title  of  an  act  is  not  objectionable,  provided  that  it  is  "so  framed  and 
worded  as  fairly  to  apprise  the  legislators,  and  the  public  in  general,  of 
the  subject  matter  of  the  legislation,  so  as  to  reasonably  lead  to  an  inquiry 
into  the  body  of  the  bill.'"  Thus,  the  title  of  the  Criminal  Code,  "An  Act  to 
revise  the  law  in  relation  to  criminal  jurisprudence,"  is  not  objectionable 
because   of  its  generality.® 

If  an  act  contains  two  distinct  subjects,  it  is  in  violation  of  this  constitu- 
tional provision.  As  has  been  suggested,  the  title  of  an  act  may  be  so  re- 
stricted as  to  preclude  the  incorporation  in  the  body  of  the  act  of  provisions 
which  might  well  have  been  included  under  a  more  general  title.  But  an 
act  cannot  embrace  two  distinct  subjects,  irrespective  of  its  title.     Thus,  an 

8«Larnecl  v  Tierman,    110   111.    173    (1884). 
^People   v    Strassheim,    240    111.    279    (1909). 
98  Rouse   v    Thompson,    228    111.    522    (1907). 
»'Galpin   v    City   of   Chicago,    269    111.    27    (1915). 

1  Veto  Message  No.  3  (1874);  see,  also,  Sutter  v  People's  Gas  Light  Co., 
284  111.  634  (1918);  Bailey  v  People,  190  111.  28  (1901);  Allardt  v  People,  197 
111.  501  (1902);  Kennedy  v  LeMoyne.  188  111.  255  (1900);  Snell  v  City  of  Chicago, 
133  111.  413  (1890);  Leach  v  People  122  111.  420  (1887);  People  v  Mellen  32  111. 
181    (1863);   Veto  Messages   1919,   p.   8. 

2  Rouse   V   Thompson,    228    111.   522    (1907). 

3  Rouse  v   Thompson,    228    111.   522    (1907). 

4  Milne   v  People,    224   111.    125    (1906). 

s  Milne   V    People    224    111.    125    (1906);    People    v    Roth,    249    111.    532    (1911); 
Tarantina  v    L.   &  N.   R.    R.   Co.,   254    111.   624    (1912). 
«  Fuller  v   People,    92   111.   182    (1879). 


92  Article  4,  Section  13 

act  which  conferred  upon  the  city  of  Chicago  the  power  and  authority  to 
sell  surplus  electricity  and  to  fix  the  rates  and  charges  for  gas  or  electricity 
furnished  to  the  people  of  that  city  by  private  individuals  or  corporations, 
was  held  void  because  it  embraced  two  distinct  subjects  both  of  which  were 
expressed  in  the  title/  However,  the  mere  fact  that  the  title  of  an  act  is 
detailed,  or  in  the  nature  of  an  index  to  the  contents  of  the  body  of  the  act, 
does  not  necessarily  mean  that  the  act,  even  though  it  relates  to  and  amplifies 
the  details  mentioned  in  the  title,  contains  more  than  one  subject.  An  act 
does  not  embrace  two  subjects  merely  because  its  subject  matter  is  expressed 
in  the  title  with  more  than  necessary  particularity;  that  is,  each  detail 
mentioned  in  such  a  title  need  not  be  construed  as  constituting  a  distinct 
subject  in  itself,  if  all  the  details  hat^e  a  reasonable  relationship  to  one  gen- 
eral subject.  The  motor  vehicle  law  of  1911  contained  the  following  title: 
"An  Act  defining  motor  vehicles  and  providing  for  the  regulation  of  the 
same  and  of  motor  bicycles,  and  uniform  rules  regulating  the  use  and  speed 
thereof;  prohibiting  the  use  of  motor  vehicles  without  the  consent  of  the 
owner  and  the  offer  or  acceptance  of  any  bonus  or  discount  or  other  con- 
sideration for  the  purchase  of  supplies  or  parts  for  any  such  motor  vehicle 
or  for  work  or  repairs  done  thereon  by  others,  and  defining  chauffeurs  and 
providing  for  the  examination  and  licensing  thereof,  and  to  repeal  certain  acts 
therein  named."  It  was  contended  that  each  clause  of  this  title  was  a  dis- 
tinct subject  and  that  since  the  body  of  the  act  dealt  with  all  of  the  clauses, 
the  act  was  void  because  it  embraced  more  than  one  subject.  The  court, 
however,  sustained  the  act.  "The  mere  mentioning  in  the  title  of  related 
particulars  is  not  stating  a  generality  of  subjects.  The  act  in  question  re- 
lates to  one  general  subject  [motor  vehicles]  and  that  subject  is  expressed 
perhaps,  with  unnecessary  particularity  in  the  title."" 

What  is  the  effect  of  including  more  than  one  subject  in  an  act?  If 
an  act  contains  two  subjects,  only  one  of  which  is  expressed  in  the  title,  the 
act  is  void  only  to  the  extent  of  the  subject  not  contained  in  the  title.®  But 
if  an  act  contains  two  subjects,  both  of  which  are  expressed  in  the  title,  then 
the  whole  act  is  void.  "The  court  being  powerless  to  elect  between  the  two 
subjects  so  as  to  preserve  one  while  the  other  fails,  the  entire  act  must  fall 
by  reason  of  being  in  contravention  of  the  constitutional  limitation".^" 

If  the  title  to  an  act  expresses  more  than  one  subject,  but  the  body  of 
the  act  relates  to  only  one  subject,  the  subject  expressed  in  the  title  and  not 
embraced  in  the  act  may  be  regarded  as  surplusage.  The  constitutional  pro- 
hibition against  more  than  one  subject  is  not  directed  against  the  title  but 
is  directed  against  the  act." 

Amendatory   Acts. 

Much  that  has  already  been  said  with  reference  to  titles  of  acts,  applies 
to  titles  of  acts  which  are  expressly  amendatory  of  existing  acts.  The  sub- 
ject matter  of  an  express  amendatory  act  must  be  germane  to  the  title  of 
the  act  amended.  In  other  words,  an  act  which  expressly  amends  another 
act,  may  be  as  broad  as  the  original  act,  and  any  provision  that  might  have 
been  inserted  in  the  original  act  when  it  was  passed,  may  be  included  in 
the  amendatory  act.^-  Apparently,  however,  this  rule  applies  only  in  the 
event  that  the  amendatory  act  purports  to  amend  the  whole  of  an  existing 
act.  If  an  act  is  entitled,  "An  Act  to  amend  an  act  concerning  local  im- 
provements," any  provision  may  be  included  in  the  amendatory  act  which 
might  have  been  inserted  in  the  original  act.'^  But  if  the  act  is  entitled, 
"An  Act  to  amend  section  2  of  'An  Act  to  revise  the  law  in  relation  to  town- 
ship organization,'  "  its  provisions  must  be  germane  not  only  to  the  title  of 

T  Sutter  v  People's  Gas  Light  Co.,   284  111.   634    (1918). 

« People   v   Sargrent,    254    111.    514    (1912). 

»  People  v  Nelson,  133  111.  565  (1890);  Ritchie  v  People,  155  111.  98  (1895); 
Sutter  V  People's  Gas  Light  Co.,  284  111.  634  (1918);  but  see  Galpin  v  City  of 
ChicapTO,    269    111.    27     (1915). 

10  Sutter  V  People's  Gas  Light  Co.,   284  111.   634    (1918). 

11  People    V   McBride,    234    111.    146    (1908). 

"Sny  Island  Drainage  District  v  Shaw,  252  111.  142  (1911);  Gage  v  City 
of   Chicago,    203    111.    26    (1903). 

13  Gage    V    City   of   Chicago,    203    111.    26    (1903). 


Article  4,  Section  13  93 

the  original  act,  but  to  the  subject  matter  of  original  section  2."  Provisions 
which  are  not  germane  to  the  title  may  not  be  included  in  an  express 
amendatory  act,  but  the  title  of  the  original  act,  if  more  restrictive  than 
need  be,  may  be  amended  so  as  to  make  it  broad  enough  to  include  pro- 
visions which  would  not  have  been  germane  in  the  first  instance.^' 

The  title  to  an  express  amendatory  act  need  not  be  absolutely  correct. 
If  the  reference  to  the  act  to  be  amended  is  sufficient  for  identification,  that 
is  all  that  is  required.  The  intention  of  the  General  Assembly  will  be  given 
effect  if  possible.^^  Thus,  "An  Act  to  amend  the  Criminal  Code,"  etc.,  is 
not  void  because  there  is  no  existing  act  entitled  "Criminal  Code."  It  is 
perfectly  clear  that  the  General  Assembly  referred  to  "An  Act  to  revise 
the  law  in  relation  to  criminal  jurisprudence,"  which  is  generally  spoken  of 
as  the  Criminal  Code."  References  in  a  title  to  the  paragraph  or  chapter 
numbers  of  Kurd's  Revised  Statutes  instead  of  the  correct  section  numbers 
of  the  act  sought  to  be  amended,  will  not  defeat  an  amendatory  act,  if  the 
intention  to  amend  a  certain  act  or  sections  of  an  act  is  clear.^^  And  so  an 
amendatory  act  is  not  unconstitutional  merely  because  its  title  gives  an 
incorrect  date  for  the  act  to  be  amended.  If  it  is  clear  what  act  was  in- 
tended to  be  amended,  the  amending  act  will  be  given  effect  in  accordance 
with  the  intention  of  the  General  Assembly.'^ 

However,  it  has  been  held  by  the  Attorney  General  that  an  amendatory 
act  entitled,  "An  Act  to  amend  sections  5  and  6  of  an  act  entitled,  'An  Act,'  " 
etc.,  will  not  cover  an  amendment  to  section  3  of  the  act  sought  to  be  amend- 
ed. The  title  expressly  excludes  the  idea  of  amending  section  3.-"  And,  "An 
Act  to  amend  section  2  of  an  act  entitled  'An  Act,'  "  etc.,  is  a  title  not  broad 
enough  to  permit  the  adding  of  additional  sections  to  the  old  act.^  Nor  is 
it  permissible,  according  to  an  opinion  rendered  by  the  Attorney  General 
in  1908,  in  amending  a  section  of  an  act  which  has  already  been  amended, 
to  refer  in  the  title  of  the  second  amendatory  act  only  to  the  title  of  the 
first  amendatory  act." 

An  act  which  is  independent  in  form  but  which  will  have  the  effect  of 
amending  an  existing  statute  need  not  express  in  its  title  that  its  effect  will 
be  to  amend  an  existing  statute.  It  is  only  the  subject  of  an  act  which  is 
required  by  the  constitution  to  be  expressed  in  the  title,  and  not  the  effect 
of  the  act.-^ 

Municipal  Ordinances. 

The  provisions  of  the  constitution  relating  to  titles  of  acts  has  no 
application  to  municipal  ordinances.'^* 


Revival  and  amendment  by  reference.  The  language  of  the  consti- 
tution to  be  considered  in  this  sub-heading  is:  "And  no  law  shall  be  revived 
or  amended  by  reference  to  its  title  only,  but  the  law  revived  or  the 
section  amended,  shall  be  inserted  at  length  in  the  new  act". 

Revival  by  reference. 

The  provision  of  the  constitution  relating  to  the  revival  of  a  law  by 
reference  to  its  title  only  has  caused  no  difllculty.     There  never  has  been 

"  Donnersberger  v  Prendergast,  128  111.  229  (1889);  Dolese  v  Pierce,  124  111. 
140    (1888). 

15  People   V   City   of   Chicago.    256    111.    558    (1912). 

i«  People  V  Braun,   246   111.    428    (1910);   Otis   v   People,    196   111.    542    (1902). 

17  People  V  Van  Bever.   248   111.   136    (1911). 

isPatton   V   People,    229    111.    512    (1907). 

i»  People  V  Penman,  271  111.  82  (1915);  Patton  v  People,  229  111.  512  (1907). 
For  other  cases  relating  to  this  general  subject  see  School  Directors  v  School 
Directors,  73- 111.  249  (1874);  L.  &  N.  R.  R.  Co.,  v  City  of  East  St.  Louis,  134 
111.   656    (1890);   Village  of  Melrose   Park   v   Dunnebecke,    210   111.    422    (1904). 

-•  Report   Attorney   General    1899-1900.    p.    86. 

21  Veto  Message    Senate    Journal    1907-08,    p.    1760. 

-J  Report  Attorney   General   1908.   p.   51. 

23Timm  v  Harrison,  109  111.  593  (1884);  Mix  v  I.  C.  R.  R.  Co.,  116  111.  502 
(1886):  Board  of  Trade  v  Cowen,  252  111.  554  (1911);  but  see  Veto  Message  No. 
8(1893') 

^Harris   v   People,    218    111.    439    (1905). 


94  Article  4,  Section  13 

a  direct  violation  of  this  provision.  Governor  Palmer  held  that  if  a  law  is 
repealed,  the  repeal  of  the  repealing  law  will  not  have  the  effect  of  re- 
storing the  original  law,  because  that  would  be  to  revive  a  law  without  set- 
ting it  out  at  length  as  required  by  the  constitution.^=^  But  if  a  law  or  a 
section  of  an  act  is  repealed  by  an  act  which  is  subseqeuently  held  unconsti- 
tutional, the  old  law  or  section  will  stand  unrepealed/" 

Amendment  by  reference. 

Prior  to  the  adoption  of  the  constitution  of  1870,  statutes  were  frequent- 
ly amended  by  acts  in  substantially  the  following  form:  "Be  it  enacted, 
etc.  That  section  1  of  an  Act  entitled,  etc.,  is  amended  by  inserting  before 
the  word  'county'  the  word  'city'."  If  the  amendment  desired  was  the  sub- 
stitution of  one  word  for  another  or  the  striking  out  of  a  word  or  phrase, 
it  was  usually  accomplished  by  an  act  of  the  same  general  character.  Such 
an  amendatory  act  was,  of  course,  unintelligible  unless  compared  with  the 
section  amended.  The  purpose  of  this  constitutional  provision  was  to  rem- 
edy a  defect  in  the  form  of  express  amendatory  acts  by  requiring  such  acts 
to  set  forth  at  length  the  section  or  sections  as  amended.  Confined  to  that 
purpose,  this  provision  would  have  caused  no  difficulty.  It  makes  trouble 
only  when  applied  to  acts  which  are  independent  in  form  and  do  not  pur- 
port to  amend  existing  laws. 

From  1870  to  1900  the  Supreme  Court  declined  to  apply  this  provision 
of  the  constitution  to  acts  which  were  not  expressly  amendatory  in  form. 
In  People  v  Wright,^"  the  court  in  refusing  to  apply  the  provision  to  an 
independent  act  said:  "The  mischief  designed  to  be  remedied  was,  the  enact- 
ment of  amendatory  statutes  in  terms  so  blind  that  legislators  themselves 
were  sometimes  deceived  in  regard  to  their  effect,  and  the  public,  from  the 
difficulty  in  making  the  necessary  examination  and  comparison,  failed  to 
become  apprised  of  the  changes  made  in  the  laws.  An  amendatory  act,  which 
purported  only  to  insert  certain  words,  or  to  substitute  one  phrase  for  an- 
other, in  an  act  or  section,  which  was  only  referred  to,  but  not  republished, 
was  well  calculated  to  mislead  the  careless  as  to  its  effect,  and  was,  perhaps, 
sometimes  drawn  in  that  form  for  that  express  purpose.  Endless  confusion 
was  thus  introduced  into  the  law,  and  the  constitution  wisely  prohibited  such 
legislation.  But  an  act,  complete  in  itself,  is  not  within  the  mischief  de- 
signed to  be  remedied  by  this  provision,  and  can  not  be  held  to  be  prohibited 
by  it  without  violating  its  plain  intent."  This  rule  was  consistently  adhered 
to^^  until  the  decision  of  the  court  in  the  case  of  People  v  Knopf.=^  In  that 
case,  the  court  laid  down  the  rule  that  if  an  independent  act  constitutes 
a  complete  and  entire  act  of  legislation  on  the  subject  with  which  it  purports 
to  deal,  it  will  be  deemed  not  subject  to  the  constitutional  prohibition,  not- 
withstanding the  fact  that  it  may  repeal  or  modify  existing  laws,  but  if  the 
purpose  of  the  independent  act  is  to  amend  the  existing  law  or  to  add  new 
provisions  to  the  existing  law,  then  it  is  clearly  amendatory  of  statutes 
then  in  force,  and  the  provisions  of  the  laws  then  in  force,  which  are  so 
amended,  must  be  set  forth  at  length  in  the  act  as  amended.  This  rule, 
however,  was  not  applied  in  the  Knopf  case,  although  the  independent  act 
then  under  consideration  was  apparently  in  direct  conflict  with  it.  But  in 
People  V  Board  of  Election  Commissioners,"*^  the  court  held  void  an  indepen- 
dent act  on  the  ground  that  it  was  not  complete  in  itself,  and  that  it  amended 
an  existing  statute,  without  setting  forth  at  length  the  provisions  amended. 

Since  1900,  the  court  has  applied  this  provision  of  the  constitution  to 
many  independent  acts.    Some  of  the  acts  have  been  sustained  ;^^  others  have 

^•'  Veto   Message   House   Journal    1871,    p.    484. 

2"  People  V   Butler   Street  Foundry   and   Iron  Co.,    201    111.    236    (1903). 

2' 70    111.    388    (1873). 

""«Geisen  v  Heiderich,  104  111.  537  (1882);  Timm  v  Harrison,*  109  111.  593 
(1884);  School  Directors  v  School  Directors,  135  111.  464  (1891);  People  v  Loef- 
fler.   175   111.   585    (189S). 

29  183  111.   410    (1900). 

"0  221   111.   9    (1906). 

«^Erford  v  City  of  Peoria.  229  111.  546  (1907);  People  v  Jones,  242  111.  138 
(1909);  Hollingsworth  v  C.  &  C.  Coal  Co.,  243  111.  98  (1909);  People  v  Van  Bever, 
248  111.  136  (1911);  People  v  C.  W.  &  I.  R.  R.  Co.,  256  111.  388  (1912);  Scown 
V  Czarnecki,  264  111.  305   (1914);  People  v  Sweitzer,   266  111.  89    (1914);  People  v 


Article  4,  Section  13  95 

been  held  unconstitutional.^-  The  decisions  are  based  on  the  ground  that  the 
acts  are  or  are  not  complete  in  themselves.  In  many  cases  it  is  difficult  to  dis- 
tinguish between  acts  held  void  and  acts  held  valid.  In  People  v  Cross- 
ley,'"'  the  court  promulgated  the  following  rules  with  reference  to  this  mat- 
ter: "(1)  An  Act  which  is  complete  within  itself  and  does  not  purport, 
either  in  its  title  or  in  the  body  thereof,  to  amend  or  revive  any  other  act, 
is  valid  even  though  it  may  by  implication  modify  or  repeal  prior  existing 
statutes.  (2)  An  act,  though  otherwise  complete  within  itself,  which 
purports  to  amend  or  revive  a  prior  statute  by  reference  to  its  title  only, 
and  does  not  set  out  at  length  the  statute  amended  or  revived,  is  invalid, 
regardless  of  all  other  questions.  (3)  An  Act  which  is  incomplete  in  itself 
and  in  which  new  provisions  are  commingled  with  old  ones,  so  that  it  is 
necessary  to  read  the  two  acts  together  in  order  to  determine  what  the 
law  is,  is  an  amendatory  act  and  invalid  under  the  constitution,  and  it  is 
unimportant,  in  such  case,  that  the  act  does  not  purport  to  amend  or  revive 
any  other  statute." 

Unfortunately,  these  rules  are  not  capable  of  definite  application 
Whether  or  not  an  act  is  a  complete  act  of  legislation  on  the  subject  with 
which  it  purports  to  deal,  is,  of  course,  a  question  for  the  court.  No  one 
can  be  sure  that  an  independent  act,  which  affects,  in  any  degree,  an  exist- 
ing act  is  not  in  violation  of  the  constitutional  provision  until  the  court 
has  determined  that  it  is  not. 

An  express  amendatory  act  may  violate  this  provision  of  the  consti- 
tution, even  though  it  sets  forth  in  full  the  section  amended  or  added.  In 
Galpin  v  City  of  Chicago,^'  an  act  purported  to  add  to  an  existing  act  a  new 
section,  to  be  known  as  section  9a.  The  additional  section  was  set  forth 
in  full,  but  its  effect  was  to  amend  section  8  of  the  original  act,  and  the 
amendatory  act  was  held  unconstitutional  because  section  8  was  not  set  forth 
in  full  in  the  new  act. 

An  act  may  incorporate  by  reference,  the  provisions  of  another  act,  and 
this  will  not  be  in  violation  of  this  provision  of  the  constitution.  Thus,  an 
act  relating  to  the  organization  of  high  school  districts  may  provide  that  the 
board  of  education  for  such  districts  shall  be  elected  in  accordance  with  the 
provisions  of  the  general  school  law,  a  separate  act.^'' 

The  constitution  requires  that  an  amended  section  shall  be  set  out  at 
length,  as  amended,  but  it  does  not  require  the  original  section  to  be  set 
forth  also  in  its  original  form  in  the  amendatory  act.*"  Nor  does  it  require 
a  repealed  section  to  be  set  forth  in  full  in  the  repealing  act.*' 

In  an  opinion  of  the  Attorney  General  it  is  held  that  an  act  designed  to 
amend  only  a  paragraph  or  subdivision  of  an  existing  section  is  void,  unless 
the  whole  section,  as  amended,  is  set  forth  at  length.     The  setting  out  of  the 

School  Directors,  257  111.  172  (1913);  Holmgren  \  City  of  Moline,  269  111.  248 
(1915);  Morten  v  Clark,  272  111.  201  (1916);  Public  Utilities  Commission  v 
C.  &  W.  T.  Ry.  Co.,  275  111.  555  (1916);  People  v  Day,  277  111.  543  (1917);  People 
V  Sweitzer,  282  111.  171  (1918);  Monarch  Discount  Co.,  v  C.  &  O.  Ry.  Co.,  285 
111.  233  (1918);  People  v  Ankrum,  286  111.  319  (1919).  See  City  of  Chicago  v 
Reeves   220   111.   274    (1906). 

32Badenoch  v  City  of  Chicago.  222  111.  71  (1906);  O'Connell  v  McClenathan, 
248  111.  350  (1911);  Brooks  v  Hatch,  261  111.  179  (1913);  People  v  Stevenson, 
272  111.  325   (1916);  Board  of  Education  v  Haworth,  274  111.  538   (1916). 

33  261   111.   78    (1913). 

31269   111.   27    (1915). 

3s  People  V  Stitt,  280  111.  553  (1917);  see.  also,  People  v  McBride,  234  111. 
146  (1908);  People  v  C.-ossley,  261  111.  78  (1913);  Zeman  v  Dolan,  279  111.  295 
(1917);  but  see  Veto  Messages   1917.  p.   75. 

3«  Chambers  v  People,  113  111.  509  (1885);  Manchester  v  People,  178  111.  285 
(1899);   City  of  Marion  v  Campbell,   266  111.   256    (1915). 

"^Freitag  v  Union  Stock  Yards,  262   111.  551    (1914). 


96  Article  4,  Section  13 

paragraph  or  subdivision,  as  amended,  will  not  suffice.     The  constitution  re- 
quires the  section,  as  amended,  to  be  inserted  at  length  in  the  new  act.''* 

(For  further  discussion  of  the  subject,  of  amendment  by  reference,  see 
Constitutional  Conventions  in  Illinois,  Second  Edition,  pp.  112-125). 


Date  of  going  into  effect.  That  part  of  section  13  of  article  4  which 
will  be  considered  in  this  subheading,  reads  as  follows:  "And  no  act  of  the 
General  Assembly  shall  take  effect  until  the  first  day  of  July  next  after  its 
passage,  unless,  in  case  of  emergency  (which  emergency  shall  be  expressed 
in  the  preamble  or  body  of  the  act),  the  General  Assembly  shall,  by  a  vote  of 
two-thirds  of  all  the  members  elected  to  each  house,  otherwise  direct." 

While  a  bill  becomes  a  law  as  soon  as  it  is  signed  by  the  Governor,  it 
does  not  become  effective  until  July  1  following  its  passage,  unless  it  is 
passed  as  an  emergency  measure  by  a  vote  of  two-thirds  of  all  the  members 
elected  to  each  house,'^°  and  this  rule  applies  to  appropriation  acts  in  just  the 
same  manner  as  it  applies  to  other  acts.*'  It  has  been  held,  however,  that  if 
an  act  not  passed  as  an  emergency  measure,  creates  an  office  which  is 
to  be  filled  by  the  appointment  of  the  Governor,  the  appointment  by  the 
Governor  may  be  made  at  any  time  after  he  signs  the  bill  creating  the 
office,  even  though  the  date  of  the  appointment  is  prior  to  July  1  follow- 
ing the  passage  of  the  bill."  And  it  has  been  held  that  persons,  having 
notice  of  the  passage  and  approval  of  an  act,  cannot  evade  its  provisions 
by  entering  into  a  contract,  forbidden  by  that  act,  during  the  period  be- 
tween the  date  of  the  approval  of  the  act  by  the  Governor  and  July  1  fol- 
lowing its  passage." 

There  is  one  situation,  however,  in  which  a  bill  which  is  not  passed 
as  an  emergency  measure  may  go  into  effect  as  soon  as  it  is  acted  upon  fav- 
orably by  the  Governor,  even  though  the  date  of  the  Governor's  action  is 
prior  to  July  1  following  the  passage  of  the  bill.  The  constitution  (article 
6,  section  13)  provides  that- circuit  court  judicial  districts  shall  be  altered 
only  at  the  session  of  the  General  Assembly  next  preceding  the  election 
of  circuit  judges.  The  constitution  also  provides  that  circuit  judges  shall 
be  elected  in  June,  1873  and  every  six  years  thereafter  (article  6,  section 
14).  Since  the  General  Assembly  convenes  in  January  of  the  odd  numbered 
years  (article  4,  sections  2,  9),  that  body  will  always  be  in  session 
in  the  same  year  as  circuit  judges  are  elected.  The  circuit  court  districts 
must  be  changed,  if  at  all,  at  the  session  of  the  General  Assembly  begin- 
ning in  January  of  the  year  in  which  circuit  judges  are  elected.^^  If  a  law 
changing  the  boundaries  of  circuit  court  districts  does  not  go  into  effect 
until  July  1  following  the  passage  thereof,  it  is  clear  that  such  boundaries 
can  never  be  changed  except  by  an  emergency  law,  for  the  circuit  judges 
must  be  elected  in  June.  The  constitution  does  not  contemplate  that  a  law 
changing  the  boundaries  of  circuit  court  districts  shall  be  passed  by  an 
emergency  vote  of  two-thirds  of  the  members  elected  to  each  house  of  the 
General  Assembly,  and,  therefore,  such  a  law  goes  into  effect  as  soon  as 
it  is  acted  upon  favorably  by  the  Governor,  even  though  it  is  passed  by  less 
than  a  two-thirds  vote." 

This  clause  of  the  constitution  apparently  does  not  prevent  the  Gen- 
eral Assembly  from  providing  in  a  law  that  it  shall  not  go  into  effect  until 
some  time  after  July  1  following  its  passage.  Thus,  the  public  utilities  act 
of  1913  and  the  motor  vehicle  act  of  1919  both  contain  clauses  providing 
that  the  acts  shall  not  take  effect  until  January  1  following  passage.  And 
the   Attorney   General   has   held    that   the    General    Assembly    may    pass    a 

^  Veto  Messages  1909,  p.  43;  see,  also.  Veto  Message  Senate  Journal  1915,  p. 
1674. 

39  People   V   Inglis,   161   111.   256    (1896). 

1"  Report  Attorney    General    1915,    p.    195. 

^1  People   V    Inglis,    161    111.    256    (1896). 

^^  Dunne  v  County  of  Rock  Island,  283  111.  628  (1918);  see,  also,  "Report  At- 
torney General   1917-18,  p.   872. 

«3  People  V  Rose,   166   111.   422    (1897). 

■«*  People  V   Rose,   166   111.   422    (1897). 


Article  4,  Section  14  07 

law  and  make  its  effectiveness  subject  to  a  referendum  at  an  election  to 
be  held  some  months  after  July  1  following  the  passage  of  the  law,  with- 
out violating  this  provision  of  the  constitution/'  It  should  also  be  noted 
that  under  the  terms  of  the  constitution,  itself,  certain  laws  do  not  become 
effective  until  approved  by  a  vote  of  the  people.  (See  discussion  article  4, 
section  18,  subheading,  "Debts";  see,  also,  discussion  article  11,  section 
5,  sub-heading,  "Referendum  requirements";  see,  also,  article  4,  section 
33;   article  14,  sections  1,  2;    separate  section  relating  to  canals.) 

This  clause  construed  in  connection  with  section  16  of  article  5,  has 
given  rise  to  a  rather  serious  controversy  which  has  not  been  decided  by 
the  Supreme  Court.  Section  16  of  article  5,  after  directing  that  all  bills 
passed  by  the  General  Assembly,  shall  be  presented  to  the  Governor  for 
his  approval  or  veto,  provides  that  "any  bill  which  shall  not  be  returned  by 
the  Governor  within  ten  days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  shall  become  a  law  in  like  manner  as  if  he  had  signed 
it,  unless  the  General  Assembly  shall  by  their  adjournment  prevent  its 
return,  in  which  case  it  shall  be  filed  with  his  objections  in  the  office  of 
the  Secretary  of  State,  within  ten  days  after  such  adjournment,  or  become 
a  law."  The  General  Assembly  passes  a  bill  on  June  25  and  adjourns  sine  die 
on  June  26.  The  Governor  neither  signs  nor  vetoes  the  bill  and  files  it  with 
the  Secretary  of  State  after  July  1,  but  within  ten  days  after  June  26. 
When  does  such  a  law  become  effective?  The  Attorney  General,  in  1915, 
held  that  it  became  effective  from  the  date  on  which  the  certificate  of 
the  S-ecretary  of  State  was  attached  thereto.**'  Others,  however,  have 
contended  that  such  a  law  does  not  become  effective  until  July  1  following 
its  filing  with  the  Secretary  of  State.  But  suppose  that  the  Governor 
neither  signs  nor  vetoes  the  bill  and  files  it  with  the  Secretary  of  State 
on  June  29.  Does  it  then  become  an  effective  law  on  July  1?  This,  of 
course,  depends  on  the  question  v/hether  or  not  the  Governor  can  waive 
the  full  ten  days  allowed  him  by  the  constitution  for  the  consideration  of 
bills.  If  he  cannot  waive  the  full  ten  days,  then  the  bill  cannot  become 
effective  until  after  July  1,  although  it  is  filed  on  June  29.  In  People  v 
Rose,  *^  the  court  held  that  the  Governor  cannot  waive  the  full  ten  days, 
and  this  means  ten  days  after  the  adjournment  and  not  ten  days  after  the 
passage  of  the  bill,  because  the  constitution  provides  that,  in  the  event  of 
the  adjournment  of  the  General  Assembly  before  the  expiration  of  the 
ten  days,  the  Governor  shall  have  ten  days  after  adjournment.  If  this  is  true, 
it  would  seem  that  the  Attorney  General's  opinion  of  1915  is  not  necessarily 
correct.  If  such  a  bill  cannot  become  a  law  until  ten  days  after  adjournment, 
even  though  filed  with  the  Secretary  of  State  before  the  expiration  of  the  ten 
days,  the  Secretary  of  State  cannot  by  immediately  attaching  his  certificate 
to  the  bill,  cause  it  to  become  an  effective  law  before  the  expiration  of  the 
ten  days.  That  would  mean  that  a  measure  became  effective  before  it  became 
a  law.  (See  discussion  article  5,  section  16,  sub-heading,  "Date  of  going  into 
effect.") 


Section  14.  Senators  and  representatives  shall,  in  all  cases,  ex- 
cept treason,  felony  or  breach  of  the  peace,  be  privileged  from  ar- 
rest during  the  session  of  the  General  Assembly,  and  in  going  to  and 
returning  from  the  same;  and  for  any  speech  or  debate  in  either 
house,  they  shall  not  be  questioned  in  any  other  place. 


This  section  of  itself  does  not  give  the   members   of  the   General  As- 
sembly the  right  or  privilege  to  be  exempt  from  service  of  civil  process, 

*•'''  Report  Attorney  General   1915,    p.    464. 

''« Report  Attorney  General  1915,  p.   397;    .see,   also   Report   Attorney   General 
1917-18,    p.    573. 

^7  167   111.   147    (1897);   but  see   People  v  McCullough.   210   111.    488    (1904). 


98  Article  4,  Sections  15,  16 

but  it  does  not  deprive  the  General  Assembly  of  the  power  to  exempt  from 
such  service,  by  general  law,  members  of  the  General  Assembly  and 
other  persons  in  the  same  class.^^ 


Section  15.  No  person  elected  to  the  General  Assembly  shall 
receive  any  civil  appointment  within  this  State  from  the  Governor, 
the  Governor  and  Senate,  or  from  the  General  Assembly,  during 
the  term  for  which  he  shall  have  been  elected ;  and  all  such  appoint- 
ments and  all  votes  given  for  any  such  members  for  any  such  office 
or  appointment,  shall  be  void ;  nor  shall  any  member  of  the  General 
Assembly  be  interested,  either  directly  or  indirectly,  in  any  con- 
tract with  the  State,  or  any  county  thereof,  authorized  by  any  law 
passed  during  the  term  for  which  he  shall  have  been  elected,  or 
within  one  year  after  the  expiration  thereof. 


In  the  opinion  of  the  Attorney  General,  a  member  of  the  General  As- 
sembly during  his  terra  of  office  cannot  serve  on  a  commission  empow- 
ered to  exercise  executive  functions.'"  Membership  on  such  a  com- 
mission, while  it  may  not  be  an  office,'"  is  nevertheless,  a  civil  appointment.''^ 
But  in  his  view  this  section  probably  does  not  prohibit  the  General  Assembly 
from  creating  by  law,  an  investigation  commission,  composed  of  members 
of  the  General  Assembly,  charged  with  the  duty  of  inquiring  into  certain 
subjects  or  questions  and  reporting  the  results  of  its  investigations  to  the 
succeeding  General  Assembly,  because  such  a  commission  in  no  proper  sense 
exercises  executive  functions."'- 

In  1884  the  Attorney  General  held  that  the  appointment  by  the  railroad 
and  warehouse  commission  of  a  state  senator  as  weigh-master  was  not 
in  violation  of  the  constitution.^''  It  does  not  appear,  however,  that  the 
Attorney  General  considered  this  section  of  the  constitution  in  rendering 
his  opinion.  It  seems  that  he  merely  held  that  such  an  appointment  was 
not  in  violation  of  section  10  of  article  5.  (See  article  4,  section  25; 
article  8,  section  4). 


Section  16.  The  General  Assembly  shall  make  no  appropria- 
tion of  money  out  of  the  treasury  in  any  private  law.  Bills  making 
appropriations  for  the  pay  of  members  and  officers  of  the  General 
Assembly,  and  for  the  salaries  of  the  officers  of  the  government, 
shall  contain  no  provision  on  any  other  subject. 


Private  laws.  The  provision  relating  to  appropriations  in  private  laws 
does  not  deprive  the  General  Assembly  of  its  power  to  pass  acts  making 
appropriations  to  pay  just  claims  against  the  state.  An  act  which  does 
nothing  more  than  make  an  appropriation  to  an  individual  to  pay  his  claim 
against  the  state,  does  not  violate  this  section  of  the  constitution.  "The 
meaning  of  the  provision  'that  the  General  Assembly  shall  make  no  appro- 

"8  Phillips   v   Browne,    270    111.    450    (1915). 

«»Veto  Messages  1907,  p.   24;  Report  Attorney  General  1915,  p.  13. 

«>Bunn  v  People,   45   111.   397    (1867). 

SI  Veto  Messages   Senate  Journal    (1st  Spec.   Session)    1915-16,   p.   83. 

53  Report  Attorney  General   1915,   p.   13. 

53  Report  Attorney  General  1884,  p.   17. 


Article  4,  Section  16  99 

priation  of  money  out  of  the  treasury  in  any  private  law'  we  do  not  under- 
stand to  be  that  no  appropriation  can  be  made  to  a  private  person  or  in- 
dividual, but  it  means  that  no  appropriation  for  any  purpose  shall  be  made 
out  of  the  treasury  in  any  private  law."^* 


Pay  of  state  officers.  Acts  making  appropriations  for  the  salaries  of 
members  of  the  General  Assembly  and  state  officers,  or  any  one  of  them, 
can  contain  no  other  provision.  An  act  creating  the  office  of  state  factory 
inspector,  and  prescribing  the  powers  and  duties  of  the  office,  cannot  con- 
tain an  appropriation  to  pay  the  salary  of  such  officer,  although  it  may 
contain  an  appropriation  to  defray  the  ordinary  expenses  of  the  office 
thus  created."^  And  an  act  creating  free  employment  agencies  cannot  con- 
tain an  appropriation  for  the  salaries  of  the  superintendents  of  these  agen- 
cies.'® The  prohibition  as  to  other  provisions  in  an  act  making  an  approp- 
riation for  the  pay  of  state  officers  applies  to  appropriations  for  other  pur- 
poses just  as  it  does  to  any  other  substantive  legislation.  An  act  making 
an  appropriation  for  the  salaries  of  state  officers  cannot  contain  appropria- 
tions for  the  wages  of  state  employees,  or  for  the  operating  expenses  of 
any  state  institution,  and  an  act  making  appropriations  for  the  ordinary 
and  contingent  expenses  of  the  state  government  cannot  include  appropria- 
tions for  the  salaries  of  state  officers." 

This  provision  of  the  constitution  has  caused  considerable  difficulty  in 
making  appropriations.  It  is  oftentimes  very  difficult  to  determine  whether 
a  person  engaged  in  the  state  service  is  an  officer  or  employee.  The  con- 
stitution (article  5,  section  24)  defines  an  office  as  a  public  position  created 
by  the  constitution  or  law,  continuing  during  the  pleasure  of  the  appointing 
power,  or  for  a  fixed  time,  with  a  successor  elected  or  appointed,  and  an  em- 
ployment as  an  agency  for  a  temporary  purpose,  which  ceases  when  that 
purpose  is  accomplished.  The  Supreme  Court  in  Fergus  v  RusseP^  lays 
down  the  rules  by  which  it  may  be  determined  whether  a  person  in  the 
state  service  is  an  officer  or  employee,  but  the  rules  add  little,  if  anything, 
to  the  constitutional  definition.""  (See  discussion  article  5,  section  24,  sub- 
heading, "Salaries  of  state  officers.") 

What  is  the  effect  of  including  other  provisions  in  an  act  making  ap- 
propriations for  one  or  m.ore  state  officers?  If  the  appropriations  are  merely 
incidental  to  the  other  provisions,  then  only  the  appropriations  are  void.*^  If 
the  main  purpose  of  the  bill  is  to  make  appropriations  for  state  officers,  then 
the  other  provisions  are  void  and  the  appropriations  for  state  officers  will 
stand.''^  However,  if  the  title  of  such  an  act  expresses  both  subjects,  the 
whole  act  will  fall,  because  it  will  then  violate  the  constitutional  pro^ 
vision  (article  4,  section  13)  relating  to  titles.**^ 

A  question  sometimes  arises  as  to  whether  or  not  an  act  dealing  with 
other  substantive  legislation  makes  an  appropriation  for  the  salary  of  a  state 
officer.  Section  11  of  the  parole  law  of  1899  provided  as  follows.  "There 
shall  be  allow^ed  to  each  member  of  the  board  of  pardons  the  sum  of  $1,500 
per  year  to   compensate  him  for   services   performed  under   this   act,    said 

5*  Fergus   v  Russel.    277   111.   20    (1917). 

55  Ritchie   v    People,    155    111.    98    (1895). 

5«  Mathews  v  People,  202  111.  389  (1903);  see.  also.  People  y  Olson.  280  111. 
610  (1917);  Report  Attorney  General  1910,  pp.  195,  234;  1912,  p.  1013;  1914,  p. 
285, 

57  Fergus  v  Russel,   270  111.   304    (1915), 

5«  270  111.  304  (1915).  The  opinion  of  the  Supreme  Court  in  this  case 
can  be  better  understood  by  referring  to  the  opinion  of  the  lower  court  in  the 
same  case.  The  opinion  of  the  lower  court  may  be  found  in  the  Report  of  the 
Attorney   General    1916    pp.    16-24. 

f^oSee  Report  Attorney  General  1915.  p.  47;  Bunn  v  People,  45  111,  397 
(1867);  see,  also.  State  Board  of  Agriculture  v  Brady,  266  111.  592  (1915);  Illi- 
nois Farmers'   Institute  v  Brady,    267   111,   98    (1915). 

00  Ritchie  v  People,  155  111.  98  (1895);  Mathews  v  People,  202  III,  389  (1903); 
Fergus   v    Russel,    270    111.    304    (1915). 

«i  Fergus  v   Russel,   270   111.   304    (1915). 

«3  Ritchie  V  People.  155  111.  98  (1895);  People  v  Joyce,  246  111.  124  (1910); 
People    V    Olson,    280    111.    610    (1917). 


lUO  Article  4,  Section  17 

sum  to  be  payable  monthly  on  certificate  of  the  board  approved  by  the  Gover- 
nor, and  payable  out  of  any  money  in  the  treasury  not  otherwise  approp- 
riated." It  was  contended  that  this  was  an  appropriation  for  the  salary  of  a 
state  officer,  but  the  court  held  that  section  11  was  merely  a  direction  and 
not  an  appropriation.""-'  Three  judges  dissented  from  this  view,  however, 
on  the  ground  that  it  was  in  conflict  with  the  decision  in  Mathews  v  People.*'^ 
This  section  of  the  constitution  applies  only  to  appropriations  payable 
out  of  the  state  treasury.  It  does  not  apply  to  appropriations  made  by  a 
municipality."^ 


Section  17.  No  money  shall  be  drawn  from  the  treasury  ex- 
cept in  pursuance  of  an  appropriation  made  by  law,  and  on  the  pre- 
sentation of  a  warrant  issued  by  the  Auditor  thereon ;  and  no  money 
shall  be  diverted  from  any  appropriation  made  for  any  purpose,  or 
taken  from  any  fund  whatever,  either  by  joint  or  separate  resolu- 
tion. The  Auditor  shall,  within  sixty  days  after  the  adjournment 
of  each  session  of  the  General  Assembly,  prepare  and  publish  a  full 
statement  of  all  money  expended  at  such  session,  specifying  the, 
amount  of  each  item,  and  to  whom  and  for  what  paid. 


Appropriations  by  law.  Money  cannot  be  withdrawn  from  the  treasury 
under  a  joint  resolution.*^"  Money  belonging  to  the  state,  no  matter  how  ac- 
quired, whether  as  fees  for  services  rendered  by  the  state  or  otherwise,  must 
be  paid  into  the  state  treasury  and  can  be  withdrawn  only  in  pursuance  of  an 
appropriation  made  by  law.  Fees  collected  by  a  state  officer  for  services 
rendered  by  him  as  such  officer  cannot  be  expended  by  him  for 
the  maintenance  and  operation  of  his  office  but  must  be  paid 
into  the  state  treasury.'"  Money  paid  into  the  state  treasury  as  a 
result  of  an  error  cannot,  in  the  opinion  of  the  Attorney  General,  be  re- 
funded except  under  an  appropriation  made  by  law.'"*  And  it  has  also  been 
held  by  the  Attorney  General  that  money  directed  to  be  paid  into  the  state 
treasury  under  an  Act  of  Congress,  can  be  withdrawn  from  the  treasury 
only  under  an  appropriation  made  by  law,  even  though  the  money  must  be 
used  for  a  specific  purpose.*^'* 


Auditor's  warrant.  A  provision  of  a  statute  authorizing  the  payment 
of  money  out  of  the  state  treasury  on  the  warrant  of  a  county  judge  is  void.'" 
Money  can  be  withdrawn  from  the  treasury  only  on  the  warrant  of  the 
Auditor  of  Public  Accounts. 

The  Auditor  of  Public  Accounts  is  the  official  examiner  of  the  accounts 
and  claims  against  the  state,  and  *'it  is  not  within  the  power  of  the  General 
Assembly  to  deprive  the  Auditor  of  Public  Accounts  of  the  power  conferred 
upon  him  by  the  constitution  to  audit  claims  and  charges  against  the  state 
created  in  pursuance  of  an  appropriation  made  by  law.""  If  a  sum  of  money 
is  appropriated  to  a  state  agency,  it  has  no  right  to  demand  that  the  Auditor 
of  Public  Accounts  issue  a  warrant  for  the  total  amount  payable  to  that 

<«  People  V   Joyce,    246   111.   124    (1910). 

«*202   111.    389    (1903). 

«':City  of  ChicapTO   v   Wolf,    221   111.    130    (1906). 

'^«Burritt   v   Commissioners    of   State   Contracts.    120    111.    322    (1887). 

e^Whittemore  v  People,  227  111.  453  (1907);  Board  of  Trade  v  Cowen,  252 
111.  554  (1911);  People  v  Sargent,  254  111.  514  (1912);  Report  Attorney  General 
1912.    pp.     929.    1013. 

«s  Report  Attorney  General   1910,   p.   196;    1914;    p.    224. 

•"^  Report  Attorney  General   1914,   p.   194. 

™  People  v.  Evans,   247   111.   547    (1910). 

71  People  V.   Brady,   277   111.   124    (1917). 


Article  4,  Section  18  101 

agency.  That  would  deprive  the  Auditor  of  his  right  to  audit  all  claims 
against  the  state.  The  agency  may  incur  obligations,  and  if  approved  by 
the  Auditor,  it  will  be  his  duty  to  issue  his  warrants  against  the  appropria- 
tion for  the  payment  thereof.  But  the  General  Assembly  may  provide  that 
vouchers  against  appropriations  shall  be  approved  by  the  Governor,  or  some 
other  officer,  before  being  submitted  to  the  Auditor  for  the  latter's  ap- 
proval, and  this  in  no  way  interferes  with  the  power  of  the  Auditor  to 
audit  all  bills  before  the  payment  thereof  by  the  state.'- 


Diversion  of  appropriations.  An  appropriation  cannot  be  diverted -by  a 
joint  resolution  of  the  General  Assembly,"  and  this  clause,  while  it  re- 
lates to  the  diversion  of  an  appropriation  by  a  joint  or  separate  resolution, 
has  been  construed  by  the  Attorney  General  to  prevent  the  use  of  money  for  a 
purpose  other  than  that  for  which  the  money  was  appropriated.  Thus,  an 
appropriation  for  $200  for  a  secretary,  cannot  be  used  for  any  purpose  ex- 
cept that  of  paying  the  salary  of  a  secretary." 


Section  18.  Each  General  Assembly  shall  provide  for  all  the 
appropriations  necessary  for  the  ordinary  and  contingent  expenses 
of  the  government  until  the  expiration  of  the  first  fiscal  quarter 
after  the  adjournment  of  the  next  regular  session,  the  aggregate 
amount  of  which  shall  not  be  increased  without  a  vote  of  two- 
thirds  of  the  members  elected  to  each  house,  nor  exceed  the  amount 
of  revenue  authorized  by  law  to  be  raised  in  such  time ;  and  all  ap-^ 
propriations,  general  or  special,  requiring  money  to  be  paid  out  of 
the  State  treasury,  from  funds  belonging  to  the  State,  shall  end 
with  such  fiscal  quarter:  Provided,  the  State  may,  to  meet  casual 
deficits  or  failures  in  revenues,  contract  debts,  never  to  exceed  in 
the  aggregate  two  hundred  and  fifty  thousand  dollars ;  and  moneys 
thus  borrowed  shall  be  applied  to  the  purpose  for  which  they  were 
obtained,  or  to  pay  the  debt  thus  created,  and  to  no  other  purpose ; 
and  no  other  debt  except  for  the  purpose  of  repelling  invasion, 
suppressing  insurrection,  or  defending  the  State  in  war,  (for  pay- 
ment of  which  the  faith  of  the  State  shall  be  pledged),  shall  be 
contracted,  unless  the  law  authorizing  the  same  shall,  at  a  general 
election,  have  been  submitted  to  the  people,  and  have  received  a 
majority  of  the  votes  cast  for  members  of  the  General  Assembly 
at  such  election.  The  General  Assembly  shall  provide  for  the  pub- 
lication of  said  law  for  three  months,  at  least,  before  the  vote  of  the 
people  shall  be  taken  upon  the  same;  and  provision  shall  be  made, 
at  the  time,  for  the  payment  of  the  interest  annually,  as  it  shall 
accrue  by  a  tax  levied  for  the  purpose,  or  from  other  sources  of  rev- 
enue; which  law,  providing  for  the  payment  of  such  interest  by 
such  tax,  shall  be  irrepealable  until  such  debt  be  paid:  And,  pro- 
vided, further,  that  the  law  levying  the  tax  shall  be  submitted  to  the 
people  with  the  law  authorizing  the  debt  to  be  contracted. 

''^People   v  Lowden,    285   111.   618    (1918). 

^3  Burritt  v  Commissioners  of  State  Contracts,   120  111.   322    (1887). 

7'ileport  Attorney  General   1917-18,   p.   40;   1914,  p.  741. 


103  Article  4,  Section  18 

Appropriations  for  expenses  of  government.  It  is  the  duty  of  the 
General  Assembly  to  make  appropriations  for  the  expenses  of  the  gov- 
ernment of  the  state.  A  state  officer  cannot  incur  obligations  beyond  the 
amount  of  appropriations  made  for  his  office,  and  pay  them  out  of  fees  col- 
lected by  his  office.'* 


Increasing  the  aggregate  amount  of  appropriations.  Appropriations 
made  at  a  special  session  of  the  General  Assembly  obviously  have  the 
effect  of  increasing  the  aggregate  amount  of  appropriations  made  at  the 
preceding  regular  session  of  the  General  Assembly,  and,  in  the  opinion  of 
the  Attorney  General,  bills  making  such  appropriations  must,  therefore, 
be  passed  by  a  two-thirds  vote."^  Under  the  same  reasoning  all  deficiency 
appropriation  bills  must   be   passed   by   a   two-thirds   vote. 

Exceeding  the  revenue.  The  word  "revenue"  as  used  in  this  section 
includes  all  sources  of  revenue,  and  is  not  limited  to  revenue  raised  by  tax- 
ation." i  I    ^  1  -'^ 

Appropriations  must  be  for  a  specific  sum;  otherwise  it  would  be 
impossible  to  ascertain  whether  or  not  the  aggregate  amount  of  appropri- 
ations exceeded  the  amount  authorized  to  be  raised.  Thus,  an  appropria- 
tion to  the  State  Treasurer  of  "such  sums  as  may  be  necessary"  to  refund 
taxes,  is  void.'"^  Moreover,  section  16  of  article  5  expressly  requires  ap- 
propriations to  be  made  in  specific  sums.  (See  discussion  article  5,  section 
16,  subheading,  "Necessity  for  itemization"). 


Lapse  of  appropriations.  All  appropriations  whether  general  or  spe- 
cial, cease  or  lapse  at  the  expiration  of  the  first  fiscal  quarter  after  the 
adjournment  of  the  next  General  Assembly,'*  and  the  Auditor  of  Public 
Accounts  has  no  authority,  nor  can  he  be  compelled  by  a  writ  of  man- 
damus,  to  issue  a  warrant  against  an  appropriation  after  it  has  lapsed.**" 
Continuing  appropriations  are,  therefore,  forbidden  by  this  section  of  the 
constitution. 


Debts.  The  General  Assembly  cannot  contract  a  debt  in  excess  of 
$250,000  unless  the  law  contracting  the  debt  is  submitted  to  and  approved 
by  the  voters.  Such  a  law  must  be  published  three  months  at  least  before 
the  vote  of  the  people  thereon,  but  there  is  no  need  for  a  separate  law 
providing  for  its  publication.  The  General  Assembly  may  provide  for  its 
publication  in  the  law  itself,  by  resolution  or  by  a  separate  law." 

The  General  Assembly  must  provide  for  the  payment  of  the  interest 
on  the  debt  proposed  to  be  created,  and  it  may  do  this  by  levying  a  tax 
for  that  purpose.  But  if  a  tax  is  levied,  the  law  levying  the  tax  must  be 
submitted  to  the  people  with  the  law  authorizing  the  creation  of  the  debt. 
However,  there  is  no  need  for  two  separate  laws.  The  law  creating  the 
debt  may  also  provide  for  the  tax  levy.**- 

A  law  creating  a  debt  in  excess  of  $250,00,  to  be  adopted,  must  receive 
a  majority  of  the  votes  cast  for  members  of  the  General  Assembly  at  the  gen- 
eral election  at  which  it  is  submitted.  Under  the  minority  representation  sys- 
tem (article  4,  sections  7,  8)  each  voter  has  three  votes  for  members  of  the 

■^Whittemore   v   People,    227    111.    453    (1907). 

7«Veto  Messages   1911-12.    p.    34. 

"Fergus  v   Brady,    277    111.    272    (1917). 

78  Fergus  v  Russel,  270  111.  304  (1915).     Report  Attorney  General  1910,  p.  125. 

7»  People  v  Llppincott,  64  111.  256  (1872);  People  v  Swigert,  107  111.  494 
(1883). 

80  People  V  Brown,  281  111.  390  (1917);  People  v  Board  of  Trustees.  283 
III.   494    (1918). 

■''^Mitchell  V  Lowden,   288   111.   327    (1919). 

8«  Mitchell   v  Lowden,   288   111.    327    (1919), 


Article  4,  Section  19  103 

house  of  representatives.  If  the  provision  which  requires  that  such  a  law,  in 
order  to  be  adopted,  must  receive  a  majority  of  all  votes  cast  for  mem- 
bers of  the  General  Assembly  is  given  a  literal  construction,  it  is  apparent 
that  no  law  creating  a  debt  in  excess  of  $250,000  could  be  adopted.  This 
provision,  therefore,  must  be  interpreted  to  mean  that  such  a  law  is  adopt- 
ed if  it  receives  a  number  of  votes  equal  to  a  majority  of  the  number  of 
voters  voting  for  members  of  the  General  Assembly."'^ 

In  1908  an  amendment  to  the  constitution  (separate  section  relating 
to  the  canal)  was  adopted  authorizing  a  bond  issue  of  $20,000,000  to  de- 
fray the  cost  of  constructing  a  deep  waterway.  In  the  opinion  of  the  At- 
torney General  an  act  of  the  General  Assembly  authorizing  the  issuance  of 
bonds  under  that  amendment  to  the  constitution  need  not  be  submitted 
to  the  people  under  the  provisions  of  this  section  of  the  constitution.**^ 

(For  an  historical  statement  with  reference  to  the  limitation  on  the 
power  of  the  General  Assembly  to  contract  debts,  see  Constitutional  Con- 
ventions in  Illinois,  Second  Edition,  pp.  13,  28,  42.) 


Section  19.  The  General  Assembly  shall  never  grant  or 
authorize  extra  compensation,  fee  or  allowance  to  any  public  officer, 
agent,  servant  or  contractor,  after  service  has  been  rendered  or  a 
contract  made,  nor  authorize  the  payment  of  any  claim,  or  part 
thereof,  hereafter  created  against  the  State  under  any  agreement 
or  contract  made  without  express  authority  of  law;  and  all  such  un- 
authorized agreements  or  contracts  shall  be  null  and  void:  Pro- 
vided, the  General  Assembly  may  make  appropriations  for  expen- 
ditures incurred  in  suppressing  insurrection  or  repelling  invasion. 

Extra  compensation.  A  firemen's  pension  law  is  not  in  violation  of 
this  provision  of  the  constitution.  Such  a  law  does  not  authorize  extra 
compensation  even  as  to  those  persons  who  were  in  the  service  prior  to 
its  adoption.  Payments  made  thereunder  are  in  the  nature  of  deferred 
payments  to  insure  long  continued  service.^^' 


Express  authority  of  law.  An  agency  or  arm  of  the  state  government 
can  incur  only  -^uch  obligations  as  it  is  authorized  by  law  to  create.^^  The 
authority  of  such  an  agency  to  incur  obligations,  even  though  within  the 
general  scope  of  the  functions  imposed  upon  it  by  law,  is,  with  a  few  ex- 
ceptions, limited  to  the  amount  of  the  existing  appropriations  made  to  that 
agency;  and,  generally  if  the  appropriations  are  insufficient  to  meet  the 
obligation  incurred,  the  contract  creating  the  obligation  is  void  as  being 
made  without  express  authority  of  law.**'  What  is  express  authority  of  law? 
"That  authority  is  express  which  confers  power  to  do  a  particular,  identi- 
cal thing  set  forth  and  declared  exactly,  plainly  and  directly,  with  well 
defined  limits,  and  the  only  exception  under  which  a  contract  exceeding 
the  amount  appropriated  for  the  purpose  may  be  valid  is  where  it  is  so 
expressly  authorized  by  law.  An  express  authority  is  one  given  in  direct 
terms,  definitely  and  explicitly,  and  not  left  to  inference  or  to  implication, 
as  distinguished  from  authority  which  is  general,  implied  or  not  directly 
stated  or  given.  An  example  of  such  express  authority  is  found  in  one  of 
the  deficiency  appropriations  to  the  Southern  Illinois  penitentiary  which  has 

8-' Mitchell    V   Lowden,    288   111.    327    (1919). 
«' Report  Attorney   General    1915,   p.    62. 

**••  People  V  Abbott,  274  111.  380   (1916);  Hughes  v  Traeger,  264  111.  612   (1914). 
^"'Townsend  v  Gash,  267   111.  578    (1915);   Veto  Message  Senate  Journal  1887, 
p.   974. 

"Fergus  v  Brady,  277  111.  272   (1917);  Report  Attorney  General  1914,  p.  677. 


lOi  Article  4,  Section  20 

been  paid,  and  serves  only  as  an  illustration.  The  authorities  in  control 
of  the  penitentiary  are  required  by  law  to  receive,  feed,  clothe  and  guard 
prisoners  convicted  of  crime  and  placed  in  their  care,  involving  the  expen- 
diture of  money,  which  may  vary  on  accouiit  of  the  cost  of  clothing,  food 
and  labor,  beyond  the  control  of  the  authorities,  and  which  could  not  be 
accurately  estimated  in  advance  for  that  reason  or  by  determining  the 
exact  number  of  inmates.  To  extend  the  meaning  of  the  constitutional 
requirement  that  there  shall  be  express  authority  of  law  for  the  creation 
of  a  debt  or  the  making  of  an  agreement  or  contract  in  excess  of  an  ap- 
propriation for  the  purpose  beyond  the  meaning  we  have  given  to  it  would 
destroy  and  nullify  the  provisions  of  .the  constitution.  The  power  of  the 
General  Assembly  to  make  appropriations  for  any  purpose  is  not  exhausted 
by  one  appropriation  but  additional  appropriations  may  be  made  before 
an  indebtedness  is  incurred,  as  occasion  may  require."*'* 

If  a  statute  prescribes  the  methods  and  conditions  under  which  a 
contract  with  the  state  shall  be  executed,  the  provisions  must  be  com- 
plied with  in  every  particular,  or  the  contract  will  be  void  as  not  being 
made  with  express  authority  of  law.  Thus,  if  a  statute  requires  that  print- 
ing contracts  with  the  state  shall  be  let  to  the  lowest  bidder  after  a  full 
opportunity  for  competition,  no  printing  contract  with  the  state  will  be 
valid  unless  there  has  been  an  opportunity  for  competition,  and  if  one 
printer  obtains  such  a  contract  as  the  result  of  an  agreement  Or  under- 
standing with  other  printing  establishments  that  there  shall  be  no  com- 
petition, the  contract  is  void.'" 


Section  20.  The  State  shall  never  pay,  assume  or  become  re- 
sponsible for  the  debts  or  liabilities  of,  or  in  any  manner  give,  loan 
or  extend  its  credit  to,  or  in  aid  of  any  public  or  other  corpora-" 
tion,  association  or  individual. 


This  section  does  not  prohibit  appropriations  from  the  state  treasury 
to  private  corporations  or  associations,  if  the  money  appropriated  is  to  be 
spent  for  a  public  purpose.  The  state  may  make  use  of  private  agencies 
in  carrying  out  its  governmental  functions.  Thus,  an  appropriation  to  the 
Illinois  State  Normal  University,  a  private  corporation,  is  valid,'-"'  and  so 
is  an  appropriation  to  the  State  Beekeepers'  Association."^  But  an  ap- 
propriation for  the  expenses  of  a  legislative  committee  created  by  reso- 
lution to  sit  after  the  adjournment  sine  die  of  the  General  Assembly  is 
void,  because  the  General  Assembly  has  no  legal  existence  after  such  ad- 
journment, and  the  committee  is  but  a  group  of  private  individuals  whose 
expenses  cannot  be  paid  by  the  state  without  violating  this  provision  of 
the  constitution.'-*- 

The  provisions  of  the  road  and  bridge  law  authorizing  the  state,  under 
certain  terms  and  conditions,  to  pay  one-half  the  cost,  of  constructing  roads 
in  such  counties  as  will  avail  themselves  of  the  offer  by  paying  the  other 
half  of  the  cost,  does  not  violate  this  section  of  the  constitution.  The 
construction  of  roads  is  a  public  purpose  and  the  state,  if  it  saw  fit,  could 
construct  the  roads  and  pay  the  total  cost  out  of  the  state  treasury."'' 


s«  Fergus   v    Brady,    277    111.    272    (1917). 

89  Dement   v    Rokker,    126   111.    174    (1888). 

»0Boehm  v  Hertz,  182  111.  154  (1899);  see,  also.  State  Board  of  Agriculture 
v  Brady,  266  111.  59?  (1915);  Illinois  Farmers'  Institute  v  Brady,  267  111.  98 
(1915). 

«i  Keport  Attorney  General  1910,  p.  114.  See  Report  Attorney  General  1910, 
p.  756;  Veto  Messages  1919,  p.  31. 

"^Fergus  v  'Russel,    270    111.    304    (1915). 

""Martens  v  Brady,   264   111.   178    (1914). 


Article  4,  Section  21  105 

The  wife  abandonment  act  of  1913  is  not  unconstitutional,  because  it 
authorizes  the  court,  in  the  event  of  the  conviction  of  the  defendant,  to 
direct  that  a  part  or  the  whole  of  the  fine  imposed  be  paid  to  the  abandoned 
wife.  This  section  of  the  constitution  v/as  not  intended  to  affect  the  dis- 
position of  money  obtained  as  a  result  of  the  infliction  of  penalties  for 
the  violation  of  the  criminal  laws.^* 

The  right  ol  the  General  Assembly  to  authorize  the  payment  of  addi- 
tional compensation  to  an  officer  for  additional  duties  imposed  upon  him 
is  not  affected  by  this  section,  and  the  General  Assembly  may  provide 
for  such  additional  compensation,  if  other  sections  of  the  constitution,  such 
as  those  forbidding  an  increase  in  salary  during  the  term  of  ofllce,  are  not 
violated.'*' 


Section  21.  The  members  of  the  General  Assembly  shall  re- 
ceive for  their  services  the  sum  of  five  dollars  per  day,  during  the 
first  session  held  under  this  Constitution,  and  ten  cents  for  each  mile 
necessarily  traveled  in  going  to  and  returning  from  the  seat  of  gov- 
ernment, to  be  computed  by  the  Auditor  of  Public  Accounts;  and 
thereafter  such  compensation  as  shall  be  prescribed  by  law,  and  no 
other  allowance  or  emolument,  directly  or  indirectly,  for  any  pur- 
pose whatever;  except  the  sum  of  fifty  dollars  per  session  to  each 
member,  which  shall  be  in  full  for  postage,  stationery,  newspapers, 
and  all  other  incidental  expenses  and  perquisites;  but  no  change 
shall  be  made  in  the  compensation  of  members  of  the  General  As- 
sembly during  the  term  for  which  they  may  have  been  elected.  The 
pay  and  mileage  allowed  to  each  member  of  the  General  Assembly 
shall  be  certified  by  the  Speakers  of  their  respective  houses  and  en- 
tered on  the  journals,  and  published  at  the  close  of  each  session. , 


In  General.  The  provisions  of  this  section  forbidding  any  change  in 
the  compensation  of  members  of  the  General  Assembly  is  one  of  a  series 
of  similar  provisions  in  the  constitution  of  1870.  Special  laws  changing  the 
"fees,  percentage  or  allowance  of  public  officers  during  the  term  for  which 
said  ofllcers  are  elected  or  appointed"  are  forbidden  (article  4,  section  22). 
The  salaries  of  the  elective  executive  state  officers  cannot  be  changed  during 
their  official  terms  (article  5,  section  23).  The  salary  or  compensation  of 
judges  of.  the  Supreme  and  circuit  courts,  and  of  the  circuit  and  superior 
courts  of  Cook  County,  cannot  be  changed  during  the  terms  for  which 
they  are  elected  (article  6,  sections  7,  16,  25.)  And  the  same  prohibi- 
tion exists  with  reference  to  municipal  (article  9,  section  11)  and  county 
officers  (article  10,  section  10).  The  Supreme  Court  has  said  that  when 
all  of  these  provisions  are  construed  together,  it  is  apparent  that  the  mem- 
bers of  the  convention  of  1869-70  intended  that  the  fees,  salary  or  com- 
pensation of  no  public  officer,  who  should  be  elected  for  a  definite  or  fixed 
term,  should  be  changed  in  any  manner  during  his  term  of  office.^  If  this 
was  the  intent-'on  of  the  framers  of  the  constitution  of  1870,  it  might  have 
been  accomplished  by  a  single  section  designed  to  cover  or  embrace  all  public 
officers  elected  or  appointed  for  a  definite  or  fixed  term.  For  example, 
when  the  constitutional  framers  agreed  to  prohibit-  the  extension  of  the 
term  of  office  of  any  public  officer,  they  did  not  seek  to  accomplish  their 
purpose  by  a  series  of  prohibitions  but  merely  provided    (article  4,  section 

»*  People   v   Heise.    257    111.    443    (1913). 

»"City  of  Chicago   v   Wolf,   221   111.    130    (1906). 

9«Wolf  V  Hope,   210   111.   50    (1904). 


106  Article  4,  Section  21 

28)   that  "no  law  shall  be  passed  which  shall  operate  to  extend  the  term 
of  any  public  officer  after  his  election  or  appointment." 

However,  it  must  be  remembered  that  while  the  Supreme  Court  has  held 
that  all  officers  "occupying  offices  created  by  the  laws  of  the  state  in  and  for 
any  of  the  political  subdivisions  of  the  state"  are  municipal  officers  whose 
salaries  cannot  be  altered  during  their  term  of  office  (see  discussion  under 
subsequent  subheading  entitled  "Municipal  officers")  it  has  not  held  that 
the  salaries  of  appointive  state  officers,  such  as  the  directors  of  the  several 
departments  created  by  the  "Civil  Administrative  Code,"  who  are  to  hold 
office  for  a  definite  term  of  four  yearsf  may  not  be  changed  during  their 
terms  of  ofl^ce.  And  since  the  constitutional  limitation  on  the  power  of 
the  General  Assembly  to  change  the  salaries  of  state  officers  (article  5, 
section  23)  applies  only  to  the  elective  state  officers  created  by  article  5, 
it  is  by  no  means  certain  that  the  salaries  of  appointive  state  officers  may 
not  be  changed  during  their  terms,  even  though  they  are  appointed  for  a 
definite  or  fixed  term. 

Do  these  constitutional  provisions  mean  that  the  salary  of  a  public  oflScer 
cannot  be  increased  after  his  election  or  appointment,  even  though  his  term 
of  oflfice  has  not  yet  begun?  The  Supreme  Court  has  said:  .  "It  must  be  con- 
ceded on  principle,  that  there  is  just  as  much  reason  for  a  constitutional 
provision  prohibiting  an  increase  in  the  salaries  of  officers  who  have  been 
elected  to  oflfice,  and  who  are  sure  of  holding  office,  but  whose  terms  have  not 
commenced,  as  there  is  prohibiting  an  increase  in  salaries  of  those  actually 
in  office.  The  relators  in  this  case  had  been  elected  before  the  bill  increasing 
their  salaries  was  passed  by  the  legislature,  and  as  to  them  and  their  as- 
sociates elected  at  the  same  time  it  must  be  said  that  such  enactment  is 
clearly  and  unmistakably  contrary  to  the  spirit  and  intent  of  the  constitu- 
tion.""" However,  the  court  in  that  case  also  held  that  the  bill  increasing 
the  salaries  of  the  oflTicers  seeking  to  obtain  the  increase  became  a  law  after 
the  terms  of  the  oflRcers  had  commenced.  Hence,  its  statement  that  these 
constitutional  limitations  apply  to  an  oflElcer,  who  has  been  elected,  but  whose 
term  has  not  yet  begun,  may  not  have  been  necessary  to  the  decision.  But 
regardless  of  the  correct  holding  on  this  point,  it  has  been  held  that,  in  so  far 
as  the  judges  of  circuit  courts  and  the  judges  of  the  circuit  and  superior 
courts  of  Cook  County  are  concerned,  the  provisions  .forbidding  changes  in 
salaries  apply  to  the  terms  of  office  and  not  to  the  individuals  in  office.  (See 
discussion  subsequent  subheading  "Judicial  officers").  And  it  has  also  been 
held  that  the  fixing  of  an  officer's  salary  after  he  has  actually  entered  upon 
the  duties  of  his  office,  is  not  forbidden,  if  the  salary  was  not  fixed  at  all 
prior  to  the  time  of  his  election  or  appointment,  or  prior  to  the  time  that  he 
entered  upon  his  duties.'^ 

The  salary  of  an  officer,  who  in  an  ex  officio  capacity,  holds  another  office, 
cannot  be  increased  during  his  term  on  the  ground  that  his  ex  officio  position 
carries  with  it  additional  duties.^  Thus,  the  constitution  forbids  an  in- 
crease in  the  salary  of  a  county  treasurer  during  his  term,  even  though  in 
the  meantime  he  is  called  upon  to  perform  ex  officio,  the  duties  of  the  office 
of  supervisor  of  assessments,'  although  the  county  board  probably  could  make 
additional  allowances  to  the  treasurer  for  the  increased  expenses  of  his 
office  in  connection  with  the  performance  of  his  new  duties  as  supervisor 
of  assessments.^ 


Members  of  the  General  Assembly.  An  appropriation  of  $2,500  to  the 
Secretary  of  State  for  the  telephone  tolls  of  members  of  the  General  As- 
sembly is  void,  because  it  conflicts  with  the  provisions  of  this  section  which 

07  People   v   Sweitzer,    280    111.    436    (1917). 

»»Purcell  v  Parks,  82  111.  346  (1876).  See  Report  Attorney  General  1914,  p. 
900. 

9'Kllgore  V  People,- 76  111.  518  (1875);  see.  also,  Whittemore  v  People,  227 
111.   453    (1907). 

^Foote  V  Lake  County,  206  111.  185   (1903). 

2  Parker  v  County  of  Richland,   214   111.   165    (1905). 


Article  4,  Section  21  107 

limit  the  incidental  expenses  of  members  of  the  General  Assembly  to  $50 
each  per  session.^  And  a  joint  resolution,  directing  the  payment  (out  of  an 
appropriation  for  legislative  expenses)  to  each  member  of  the  General  As- 
sembly of  a  sum  equal  to  the  cost  of  railroad  fare  for  twenty-one  round  trips 
between  his  home  and  the  state  capital,  is  void  for  the  reason  that  it  has 
the  effect  of  increasing  the  compensation  of  the  members  of  the  General 
Assembly  during  their  official  terms,  as  well  as  increasing  the  allowance  of 
$50  to  each  member  for  each  session/ 

In  1917,  the  Attorney  General  rendered  an  opinion  in  which  he  intimated 
that  the  attorney  fees  and  other  expenses  of  a  member  of  the  General  As- 
sembly in  connection  with  an  election  contest  for  his  seat  in  the  General 
Assembly  might  well  be  considered  the  personal  expenses  of  the  member,  the 
payment  of  which  by  the  state  would  be  in  conflict  with  this  section  of  the 
constitution.^ 

The  Attorney  General  in  1910,  held  that  this  section  did  not  prohibit  a 
change  In  the  time  and  manner  of  the  payment  of  the  compensation  of  mem- 
bers of  the  General  Assembly.** 


Special  laws  changing  fees,  percentage  or  allowances  of  public  offii 
cers.  In  1871,  the  General  Assembly  under  the  provisions  of  section  24  of 
the  schedule,  passed  a  bill  authorizing  the  city  of  Quincy  to  issue  bonds  in 
aid  of  railroads.  The  bill  provided  for  a  tax  levy  and  authorized  the  tax 
officials  of  the  county  in  which  Quincy  is  located  to  retain,  as  fees,  a  certain 
percentage  of  the  taxes  collected  under  the  terms  of  the  bill.  The  Governor 
vetoed  the  bill  on  the  ground  that  the  provision  authorizing  the  tax  officials 
to  retain,  as  fees,  a  part  of  the  taxes  collected  was  in  conflict  with  that  pro- 
vision of  the  constitution  (article  4,  section  22)  prohibiting  special  laws 
"creating,  increasing  or  decreasing  fees,  percentage  or  allowances  of  public 
officers  during  the  term  for  which  said  officers  are  elected  or  appointed."^ 


Elective  state  officers.  The  salaries  of  the  elective  state  officers  can- 
not be  changed  during  their  official  terms.^  But  an  appropriation  to  the 
Governor  "for  the  care  of  the  executive  mansion  and  grounds,  and  for  heating 
lighting,  expenses  of  public  receptions,  wages  and  sustenance  of  employes, 
automobile  and  stable  expense  and  other  incidental  expenses  of  the  executive 
mansion,"  does  not  have  the  effect  of  increasing  his  salary,  particularly  when 
the  appropriation  act  provides  that  no  part  of  the  appropriation  may  be  ex- 
pended except  upon  itemized  vouchers  showing  that  an  obligation  of  the 
character  contemplated  by  the  appropriation  has  been  incurred.  And  so 
appropriations  to  the  lieutenant  Governor  for  traveling  expenses,  to  the 
Secretary  of  State  for  editing  the  Blue  Book  and  to  the  Superintendent  of 
Public  Instruction  for  conducting  certain  examinations,  do  not  increase  the 
salaries  of  these  officers,  v;hen  it  is  clear  from  the  appropriation  act  that  the 
money  appropriated  can  be  used  only  to  pay  obligations  incurred  pursuant 
to  the  purpose  of  the  appropriations.  Such  appropriations  are  not  intended 
as  the  personal  compensation  of  these  officers,  but  are  intended  to  defray 
the  cost  of  performing  the  duties  required  of  them.  Thus,  with  reference 
to  the  appropriation  to  the  Secretary  of  State  for  editing  the  Blue  Book, 
the  court  said:  "That  it  was  not  contemplated  or  intended  that' the  Secre- 
tary of  State  should  personally  edit  the  Blue  Book  and  receive  this  com- 
pensation is  too  clear  to  admit  of  argument;  and  should  he  do  so,  this  ap- 
propriation would  not  bo  available,  as  he  must  by  his  receipted  vouchers 

3  Fergus,  V   Russel.    270   111.    304    (1915). 
*  Fergus  v   Russel,    270    111.   626    (1915). 
^5  Veto    Messages    1917,    p..    85. 
"  Report    Attorney    General    1910,    p.    90. 
"'  Veto    Message    Senate    Journal    1871.    p.    377. 

**  Estate  of  Ramsay  v  Whitbeck,  183  111.   550    (1915);  WHiittemore  v  People, 
227    111.   453    (1907). 


lOS  Article  4,  Section  21 

show  that  the  money  secured  from  this  appropriation  has  been  expended  by 
him  for  this  purpose."" 

The  constitution  does  not  expressly  forbid  a  change  in  the  salary  of  an 
appointive  state  officer  during  his  term.  There  is  some  question  whether  or 
not  the  salary  of  an  appointive  state  officer  who  is  appointed  for  a  definite 
term,  may  be  increased  during  his  term.  The  question  has  never  been 
passed  upon  by  the  Supreme  Court.  (See  discussion  preceding  sub-heading 
"In  general"). 


Judicial  officers.  Section  25  of  article  6,  which  provides  that  the  com- 
pensation of  the  judges  of  the  circuit  and  superior  courts  of  Cook  County 
"shall  not  be  changed  during  their  continuance  in  office"  applies  to  the 
terms  for  which  such  judges  are  elected,  and  not  to  the  individuals  holding 
the  offices.  The  fact  that  section  16  of  article  6  provides  that  the  salaries 
of  circuit  judges  (other  than  those  of  Cook  County)  "shall  not  be  increased 
or  diminished  during  the  terms  for  which  such  judges  shall  be  respectively 
elected"  does  not  show  that  the  framers  of  the  constitution  intended  a 
different  meaning  to  be  attached  to  section  25.  While  the  language  em- 
ployed in  the  two  cases  is  different,  both  mean  the  same,  and  both  apply  to 
the  terms  of  office  and  not  to  the  individuals.  In  Foreman  v  People,'"  the 
facts  were  as  follows:  A  judge  of  the  superior  court  was  elected  in  1899 
for  a  term  of  six  years.  Before  the  expiration  of  his  term,  he  resigned. 
In  1901,  the  General  Assembly  passed  an  act  increasing  the  compensation 
of  judges  of  the  superior  court.  In  1902,  another  judge  was  elected  to  All 
the  vacancy,  and  the  question  presented  was  whether  or  not  the  second  judge, 
having  been  elected  after  the  passage  of  the  act  of  1901,  was  entitled  to 
the  increased  compensation.  The  court  held  that  he  was  not,  for  the  reason 
that  the  constitutional  limitation  applied  to  the  term  of  office  and  not  to  the 
continuance  in  office  of  the  individual.     (See  article  6,  sections  7,  16). 


Municipal  officers.  Section  11  of  article  9  in  part  provides  that  "the 
fees,  salary  or  compensation  of  no  municipal  officer  who  is  elected  or  ap- 
pointed for  a  definite  term  of  office  shall  be  increased  or  diminished  during 
such  term."  The  word  "municipal"  has  been  given  a  broad  interpretation. 
In  Wolf  V  Hope,"  the  court  said:  "In  our  judgment  the  provision  quoted 
from  section  11  of  article  9  of  the  constitution  was  intended 
to  include  all  officers  not  specifically  mentioned  in  other  provisions  of  the  con- 
stitution, occupying  offices  created  by  the  laws  of  the  state  in  and  for  any 
of  the  political  subdivisions  of  the  state,  and  within  the  meaning  of  that 
section  the  judge  of  a  city  court  is  a  municipal  officer."  In  accordance  with 
this  doctrine,  the  Suprem.e  Court  has  held  that  county  superintendents  of 
schools,  state's  attorneys,  clerks  of  the  probate  court,  city  treasurers  and 
boards  of  election  commissioners  are  municipal  officers  whose  salaries  or 
compensation  cannot  be  changed  during  their  terms  of  office.'-  And  the 
Attorney  General  has  held  that  the  provision  applies  to  village  clerks,  county 
commissioners,  clerks  of  city  courts,  town  assessors,  county  superintendents 
of  highways,  oil  inspectors  appointed  by  county  judges,  aldermen  and  drain- 
age commissioners."  The  Attorney  General,  in  a  recent  opinion,  has  also 
held  that  the  act  of  the  General  Assembly,  passed  in  1919,  increasing  the 
amount  of  the  fees  authorized  to  be  charged  and  retained  by  justices  of  the 
peace,  police  magistrates  and  constables,  does  not  apply  to  the  justices, 
magistrates  and  constables  now  in  office." 

^' FerPTUs  v   Russel.   270  111.   .?04    (191.5). 

^"209  111.  .567   (1904);  see.  also.  Report  Attorney  General  1912,  pp.  525,   526. 

H  210   111.   50    (1904). 

i3jimison  v  Adams  County.  IT.O  111.  558  (1889);  People  v  Williams.  232  111. 
.'19  (1908);  Cook  County  v  Sennott.  136  111.  314  (1891);  City  of  Chicago  v  Wolf, 
221   111.   130    (1906);   People  v  Cook  County  Commissioners.    260   111.   345    (1913). 

i!*  Report  Attorney  General  1908.  p.  692';  pp.  477.  564,  569,  570;  1914,  p. 
1239:   1915.  pp.   318,   738;   1910,  p.   900. 

1*  Opinion  Attorney  General,  August  1,  1919. 


Article  4,  Section  21  109 

The  Supreme  Court  has  decided,  however,  that  this  section  does  not 
prevent  the  establishment  of  police  pension  funds.*^  And  the  Attorney 
General  has  ruled  that  it  does  not  apply  to  the  clerk  of  the  house  of  repre- 
sentatives, the  secretary  of  the  senate  or  probation  officers,  for  the  reason 
that  these  officers  do  not  hold  their  offices  for  a  definite  term.^^ 


County  officers.  Section  10  of  article  10  provides  in  part  as  follows: 
"The  county  board  except  as  provided  in  section  nine  of  this  article,  shall  fix 
the  compensation  of  all  county  officers,  with  the  amount  of  their  necessary 
clerk  hire,  stationery,  fuel  and  other  expenses  .  .  .  Provided  that  the 
compensation  of  no  officer  shall  be  increased  or  diminished  during  his  term 
of  office."  Section  9  of  article  10  provides  that  the  General  Assembly  shall 
fix  the  salaries  of  the  clerks  of  all  courts  of  record,  the  treasurer,  sheriff, 
coroner  and  recorder  of  deeds  of  Cook  County.  Who  are  county  officers  within 
the  meaning  of  section  10  of  article  10?  In  section  8  of  article  10  county 
judges,  county  clerks,  sheriffs,  treasurers,  coroners,  circuit  clerks  and  re- 
corders of  deeds  are  expressly  designated  as  county  officers.  It  has  been  held 
that  county  superintendents  of  schools  and  state's  attorneys  are  not  county 
officers  within  the  meaning  of  this  section,^'  but  that  the  members  of  the 
board  of  commissioners  for  Cook  County  are  county  officers.'^  And  it  has 
been  held  that  this  section  does  not  include  officers  created  by  statute,  but 
applies  only  to  officers  created  by  the  constitution.'^ 

It  would  seem  that  the  question  whether  or  not  an  officer  is  a  county 
officer  is  relatively  unimportant,  in  so  far  as  changing  his  compensation 
is  concerned,  for,  in  any  event,  if  he  is  an  officer  "in  and  for  any  of  the 
political  subdivisions  of  the  state"  his  compensation  cannot  be  changed  during 
his  term  of  office.  (See  discussion  preceding  sub-heading).  But  the  words 
'"with  the  amount  of  their  necessary  clerk  hire,  stationery,  fuel  and  other 
expenses,"  which  appear  in  section  10  of  article  10,  do  have  an  important 
bearing  in  determining  whether  or  not  the  compensation  of  a  bounty  officer 
has  been  altered,  and  it  therefore  becomes  necessary  to  consider  the  de- 
cisions relating  to  the  compensation  of  county  officers,  such  as  county  clerks, 
treasurers,  sheriffs,  circuit  clerks  and  coroners.  (See  discussion  article  10, 
section  10,  sub-heading  "County  officers"). 

With  reference  to  these  officers,  it  has  been  held  that  the  county  board 
in  providing  for  their  salaries  and  expenses  m.ay  do  one  of  two  things. 
(1)  The  board  may  fix  the  personal  salary  of  the  officer,  together  with  his 
necessary  clerk  hire  and  expenses,  in  one  sum.  (2)  The  board  may  fix 
the  personal  salary  in  one  sum  and  the  necessary  clerk  hire  and  expenses 
of  his  office  in  another  sum.  If  the  first  method  is  followed,  then  the  officer 
is  limited  to  the  amount  allowed,  and  the  county  board  can  make  no  other 
allowances  to  him  during  his  term  whether  for  personal  salary  or  expenses, 
for  the  reason  that  such  additional  allowances  would  operate  to  increase 
his  compensation  during  his  term.*'  If  the  second  plan  is  followed,  the 
county  board,  while  it  may  not  allow  the  officer  an  additional  sum  for  per- 
sonal salary,  may,  during  the  officer's  term,  make  additional  allowances  to 
him  for  the  expenses  of  his  office,  without  violating  the  constitutional  pro- 
vision forbidding  increases  in  salary  during  the  term.^  And,  while  a  county 
officer  cannot  create  a  binding  obligation  against  the  county  by  making  an 
expenditure  for  expenses  in  excess  of  the  amount  fixed  by  the  county  board 

1-- People  V  Abbott.   274  111.   380    (1916). 

i«  Report   Attorney   General   1912,    p.    979;    1917-18.    p.    425. 

^•Jimison  v  Adam.s  County,  130  111.  558  (1889);  Butzow  v  Kern.  264  ill.  498 
(1914). 

iMVulff   V  Aldrich.    124   111.    591    (1888). 

19  People  V  Chetlain,  219  111.  248  (1906);  McAullffe  v  O'Connell,  258  111.  186 
(1913). 

20KilRore  v  People,  76  111.  548  (1875);  Brissenden  v  Countv  of  Clay,  161  111. 
216  (1896). 

-1  Daggett  V  Ford  County.  99  111.  334  (1881);  Coles  County  v  Messer,  195 
111.    540    (1902). 


110  Article  4,  Section  22 

for  that  purpose,"  the  board  may,  if  it  sees  fit,  approve  and  order  the  pay- 
ment of  the  obligation  so  incurred/'^  But  if  the  expenses  for  an  office  are 
provided  for  in  a  separate,  specific  sum,  the  officer  is  entitled  to  only  that 
portion  of  the  sum  which  is  actually  used  for  the  expenses  of  his  office,  and 
this  rule  will  not  operate  to  reduce  the  officer's  compensation  during  his 
term.^^  Thus,  if  a  circuit  clerk  is  allowed  $2,500  per  year  as  personal  salary 
and  $4,000  per  annum  for  expenses,  he  is  not  allowed  to  retain  the  whole 
amount  of  $4,000,  if  as  a  matter  of  fact,  he  was  required  to  expend  only  $2,000 
for  expenses.  If,  however,  personal  salary  and  expenses  are  fixed  in  one 
sum,  then  the  officer  is  entitled  to  the  whole  amount,  irrespective  of  his  ex- 
penditures for  office  expenses,  for  to  reduce  the  amount  thus  fixed  would  be 
to  reduce  the  salary  of  the  officer,  contrary  to  the  constitutional  provision,^"' 

It  must  be  remembered,  however,  that  regardless  of  the  method  of  fixing 
compensation  and  expenses  adopted  by  the  county  board,  the  personal  salary 
and  expenses  of  the  office  cannot,  in  certain  cases,  exceed  the  fees  collected 
by  the  office.     (See  discussion  article  10,  section  10,  subheading,  "Salaries"). 


Section  22.  The  General  Assembly  shall  not  pass  local  or  spe- 
cial laws  in  any  of  the  following  enumerated  cases,  that  is  to  say: 
for— 

Granting  divorces; 

Changing  the  names  of  persons  or  places ; 

Laying  out,  opening,  altering  and  working  roads  or  highways ; 

Vacating  roads,  town  plats,  streets,  alleys  and  public  grounds ; 

Locating  or  changing  county  seats ; 

Regulating  county  and  township  affairs ; 

Regulating  the  practice  in  courts  of  justice ; 

Regulating  the  jurisdiction  and  duties  of  justices  of  the  peace, 
police  magistrates  and  constables ; 

Providing  for  changes  of  venue  in  civil  and  criminal  cases ; 

Incorporating  cities,  towns  or  villages,  or  changing  or  amend- 
ing the  charter  of  any  town,  city  or  village ; 

Providing  for  the  election  of  members  of  the  board  of  super- 
visors in  townships,  incorporated  towns  or  cities; 

Summoning  and  empaneling  grand  or  petit  juries; 

Providing  for  the  management  of  common  schools ; 

Regulating  the  rate  of  interest  on  money ; 

The  opening  and  conducting  of  any  election,  or  designating  the 
place  of  voting; 

The  sale  or  mortgage  of  real  estate  belonging  to  minors  or 
others  under  disability ; 

The  protection  of  game  or  fish ; 

Chartering  or  licensing  ferries  or  toll  bridges; 

Remitting  fines,  penalties  or  forfeitures ; 

saDapTRett  v  Ford  County,  99  111.  334  (1881);  Coles  County  v  Messer,  195 
111.   540    (1902);   but  see  Briscoe   v  Clark  County,   95   111.   309    (1880). 

2-' People   V   Fuller.    238    111.    116    (1909). 

2*Cullom  V  Doloff,  94  111.  330  (1880);  Jennings  v  Fayette  County,  97  111.  419 
(1881). 

2s  Jennings  v  Fayette  County,  97  111.  419  (1881);  Brissenden  v  County  of 
Clay,  161  111.  218    (1896). 


Article  4,  Section  22  111 

Creating,  increasing  or  decreasing  fees,  percentage  or  allow- 
ances of  public  officers,  during  the  term  for  which  said  officers  are 
elected  or  appointed ; 

Changing  the  law  of  descent ; 

Granting  to  any  corporation,  association,  or  individual,  the 
right  to  lay  down  railroad  tracks,  or  amending  existing  charters  for 
such  purpose ; 

Granting  to  any  corporation,  association  or  individual  any  spe- 
cial or  exclusive  privilege,  immunity,  or  franchise  whatever; 

In  all  other  cases  where  a  general  law  can  be  made  applicable, 
no  special  law  shall  be  enacted. 


In  general.  The  constitution  of  1848  contained  certain  (provisions 
designed  to  restrict  the  power  of  the  General  Assembly  to  pass  private, 
local  or  special  laws.  That  instrument  provided  that  "no  private  or  local 
law  shall  embrace  more  than  one  subject  and  that  shall  be  expressed  in  the 
title"  (article  8,  section  23),  and  in  a  few  specific  instances  forbade  the 
passage  of  special  laws.  Under  the  constitution  of  1848,  the  General  As- 
sembly with  respect  to  divorces,  township  organization  and  the  formation 
of  corporations,  could  enact  general  laws  only  (article  3,  section  32;  article 
7,  section  6;  article  10,  section  1.)  These  limitations,  however,  had  little  effect 
in  reducing  the  number  of  private  aiid  special  laws.  The  convention  of  1862 
sought  to  place  additional  restrictions  on  the  power  of  the  General  Assembly 
in  this  respect,  but  the  constitution  proposed  by  that  body  was  rejected  by 
the  people.  It  was  for  the  purpose  of  checking  the  passage  of  a  great  num- 
ber of  private  and  special  laws  at  each  session  of  the  General  Assembly 
that  this  section  of  the  present  constitution  was  adopted  by  the  convention 
of  1869-70.  (See  Constitutional  Conventions  in  Illinois,  Second  Edition, 
pp.  14,  18,  21,  24,  44). 

This  section  of  the  constitution  forbids  the  enactment  of  special  and 
local  laws  only  to  the  extent  of  the  subjects  enumerated  therein.  As  to  all 
other  subjects  the  General  Assembly,  unless  forbidden  by  other  provisions 
of  the  constitution,  may  pass  special  laws.  Thus,  the  General  Assem;t^ly  may 
pass  special  laws  with  reference  to  drainage  districts,^"  sanitary  districts^^ 
parks,^^  or  grain  inspection.-''  This  rule,  however,  must  be  construed  in 
connection  with  that  clause  of  this  section  which  forbids  the  passage  of 
local  or  special  laws  "granting  to  any  corporation,  association  or  individual 
any  special  or  exclusive  privilege."  A  law  which  relates  to  a  subject  not 
enumerated  in  this  section  may  confer  special  privileges,  in  which  event  it 
will  be  void.'^"  (See  discussion  subsequent  subheadings,  "Special  privileges 
and  immunities"  and  "Necessity  for  general  laws  in  other  cases"). 

This  section  does  not  necessarily  prohibit  legislation  on  a  particular 
subject  or  with  reference  to  a  particular  class;  nor  does  it  absolutely  pre- 
vent the  enactment  of  laws  which  may  be  operative  in  only  a  few  localities, 
or  even  in  a  single  locality.  If  a  law  is  general  in  the  sense  that  it 
applies  without  discrimination  to  all  persons  or  localities  similarly  situated 
it  is  not  a  special  law.^^  Thus,  a  law  which  confers  a  special  power  on 
boards  of  park  commissioners  in  incorporated  cities  is  not  a  local  or  special 
law  merely  because  it  does  not  apply  to  boards  of  park  commissioners  not 

"« Owners  of  Lands  v  People,  113  111.  296  (1886);  Herschbach  v  Kaskaskia 
Sanitary   District,    26,S    111.    388    (1914). 

2^7  Wilson  V  Board  of  Trustees.  133  111.  443  (1890);  People  v  Bowman,  247 
111.    276    (1910):    Rvlands   v   Clark.    278   111.    39    (1917). 

-« Commissioners  of  Lincoln  Park  v  Falirney.   250  111.   256    (1911). 

=»People  V  Harper,   91   111.  357    (1878). 

«o  People  V  Rlnaker,  252  111.   266   (1911). 

31  People  V  Wright,  70  111.  388  (1873);  Potwin  v  Johnson,  108  111.  70  (1883); 
Hawthorn  v  People.  109  111.  302  (1883);  People  v  Hazelwood.  116  111.  319  (1886); 
Park  V  Modern  Woodmen  of  America,  181  111.  214  (1899);  City  of  Mt.  Vernon 
V  Evens  Brick  Co.,  204  111.  32    (1903). 


112  Article  4,  Section  22 

in  incorporated  cities;  it  does  apply  to  all  boards  in  incorporated  cities 
and  that  is  all  that  is  necessary.^-  And  an  act,  general  in  its  terms,  which 
purports  to  validate  defective  annexations  of  a  city,  village  or  town  by 
another  city,  village  or  town  is  not  special  even  though  it  may,  as  a  matter 
of  fact,  apply  only  to  one  city  in  the  state.^^  (See  discussion  subsequent 
subheading,  "Special  privileges  and  immunities"). 

A  law  is  not  special  merely  because  it  contains  a  provision  that  it  shall 
be  effective  only  in  those  communities  in  which  the  voters  shall  adopt  it;" 
nor  is  a  law  which  is  limited  as  to  the  time  of  its  duration  in  violation  of 
this  section.^" 

The  constitutional  provisions  with  respect  to  special  legislation  do 
not  apply  to  municipal  ordinances,^ 


Laying  out,  opening,  altering  and  working  roads  op  highways.  "The 
laws  for  laying  out  and  opening,  altering  or  working  roads  or  highways 
cannot  be  different  in  this  state  in  counties  under  township  organization 
from  what  they  are  in  counties  not  under  township  organization,  unless 
there  is  a  substantial  difference  in  the  situation  or  circumstances  of  the  two 
classes  of  counties  when  considered  with  reference  to  the  purpose  of  the 
legislation  in  question. "=*'  An  act  of  the  General  Assembly,  which  makes 
highway  commissioners  in  counties  not  under  township  organization  liable 
for  damages  sustained  by  reason  of  their  negligence  in  failing  to  keep  the 
roads  under  their  jurisdiction  in  repair,  but  which  does  not  impose  the 
same  liability  on  commissioners  in  counties  under  township  organization, 
is  void  because  there  is  no  basis  for  discrimination  between  the  two  classes 
of  commissioners  in  this  respect.'**  On  the  other  hand  the  act  of  the  Gen- 
eral Assembly  providing  for  a  system  of  hard  roads  is  not  void  as  being  in 
violation  of  this  clause  because  it  places  only  a  part  of  the  roads  of  the  state 
under  the  jurisdiction  of  the  department  of  public  works  and  buildings, 
since  it  is  clear  that,  for  the  purposes  of  that  act,  there  is  a  reasonable  basis 
for  the  classification,™ 


County  and  township  affairs.  "County  affairs  are  those  relating  to  the 
county  in  its  organic  and  corporate  capacity  and  included  within  its  gov- 
ernmental or  corporate  powers.  When  the  constitution  speaks  of  the  affairs 
of  a  county  it  refers  to  the  affairs  which  affect  the  people  of  that  county,'"** 
The  election  of  county  officers  is  a  county  affair,^'  but  the  election  of  circuit 
judges  is  not,  because  circuit  court  districts,  except  in  Cook  County,  em- 
brace more  than  one  county,^-  And  laws  providing  for  the  assessment  of 
property  or  creating  forest  preserve  districts  do  not  relate  to  county  affairs,^^' 

A  law  does  not  violate  this  clause  merely  because  it  classifies  counties 
or  townships  on  the  basis  of  population,  or  on  some  other  basis,  if  the  clas- 
sification, insofar  as  it  relates  to  the  subject  matter  of  the  law,  is  reasonable 
and  not  arbitrary;  and  this  is  true  even  though  under  the  classification 
adopted  by  the  General  Assembly  the  law  may  apply  to  but  one  county 
or  township,*^     Thus,  the  act  providing  for  jury  commissioners  in  counties 

32  West  Chicago  Park  Commissioners   v   McMullen.   134    111.   170    (1890). 

»»  People  v  City  of  Rock  Island,  271  111,  412   (1916).' 

S4  People  V  Hoffman,  IIG  111.  587  (1886);  People  v  Edmands,  252  111,  108 
(1911), 

315  People    v    Wright,    70    111,    388     (1873), 

3«  People  V  Cooper,  83  111,  585  (1876);  City  of  Chicago  v  Weber,  246  111, 
304    (1910), 

3T  Kennedy  v  McGovern.    246   111.   497    (1910). 

3«  Kennedy  v   McGovern.    246   111.   497    (1910). 

3»  Mitchell  V  Lowden,  288  111.  327  (1919);  Martens  v  Brady,  264  111.  178 
(1914). 

^<»  People  V   Board  of  Election   Commissioners.    221   111.   9    (1906). 

"i  People   v   Board   of  Election    Commissioners,    221    111.    9    (1906). 

« People  V  Sweitzer,   282   111.   171    (1918), 

*=' People  V  Commissioners  of  Cook  Co,,  176  111,  576  (1898);  Perkins  v  Com- 
missioners of   Cook   Co.,    271    111,    449    (1916), 

« People  V  Onahan,  170  111.  449  (1897);  Kucera  v  West  Chicago  Park 
Commissioners,    221    111.    488    (1906). 


Article  4,  Section  22  113 

having  a  population  of  more  than  100,000  is  not  a  special  law  even  though 
at  the  time  of  its  passage,  it  was  apparent  that  it  could  apply  only  to  one 
county  in  the  state/"  And  the  "Juul  Law"  which  classifies  counties  into 
two  classes,  those  having  more  and  those  having  less  than  300,000  pop- 
ulation, is  not  a  special  law  although  it  is  apparent  that  only  Cook 
County  can  be  included  in  one  of  the  classes  created  by  the  law.*«  In 
both  of  these  cases  the  court  took  the  view  that  for  the  purposes  of  the 
legislation  then  under  consideration  there  was  a  reasonable  basis  for 
classifying  counties  on  the  basis  of  population.  It  must  be  admitted,  how- 
ever, that  the  Supreme  Court  in  at  least  three  cases^'  seems  to  take  the 
view  that  a  law  which,  though  framed  in  general  terms,  can  apply  to  only 
one  county  or  township  is  void  as  being  a  special  law,  irrespective  of  other 
considerations.  But  when  the  cases  are  studied  carefully  it  is  apparent 
that  the  court  does  not  hold  that  reasonable  classifications  with  respect 
to  counties  and  townships  are  not  permitted  but  rather  that  the  classi- 
fications in  the  laws  considered  in  those  cases  were  deemed  unreasonable 
and  arbitrary. 

In  accordance  with  the  general  rule  that  the  General  Assembly  may 
make  reasonable  classifications  for  the  purpose  of  legislating  with  re- 
spect to  counties  and  townships,  'the  court  has  held  that  it  is  permissible 
to  make  a  distinction  between  counties  under  township  organization  and 
counties  not  under  township  organization  if,  for  the  purposes  of  the  legis- 
lation in  question,  there  is  a  reasonable  basis  for  the  distinction.^*  (See 
discussion  subsequent  sub-heading,  "Special  privileges  and   immunities.") 

It  must  be  borne  in  mind  also  that  with  reference  to  certain  subjects 
the  constitution  itself  authorizes  the  General  Assembly  to  classify  coun- 
ties or  to  pass  laws  relating  to  but  one  county.  Section  12  of  article  10 
provides  "that  the  General  Assembly  may,  by  general  law,  classify  the 
counties  by  population  into  not  more  than  three  classes  and  regulate 
the  fees  |  of  officers]  according  to  class."  Section  9  of  article  10  directs 
the  General  Assembly  to  fix  the  salaries  of  certain  Cook  County  officers. 
And  section  7  of  article  10,  as  construed  by  the  Supreme  Court,  authorizes 
the  General  Assembly  to  pass  special  legislation  for  the  management  of  the 
affairs  of  Cook  County .^^     (See  article  10,  sections  7,  9,  12). 


Practice  in  courts  of  justice.  Laws  regulating  the  practice  in  courts  of 
justice  which  apply  only  to  a  particular  subject  or  class  are  void  under  this 
clause,  unless  there  is  a  reasonable  basis  for  tKe  classification.  A  law  prescrib- 
ing a  special  procedure  in  the  courts  with  reference  to  the  dissolution  of 
insurance  companies  is  valid,  if  it  applies  generally  to  all  insurance  compan- 
ies,^" but  a  law,  which  makes  a  special  provision  for  the  appointment  of 
administrators  of  the  estates  of  non-residents  in  counties  having  a  population 
of  more  than  200,000,  is  void  as  being  in  violation  of  this  clause,  because  in 
the  opinion  of  the  court,  there  is  no  reasonable  basis  for  a  distinction  be- 
tween counties  having  a  population  of  more  than  200,000  and  counties 
having  a  population  of  less  than  200,000,  with  respect  to  the  subject  matter 
of  the  law."^  (See  discussion  subsequent  sub-heading,  "Special  privileges 
and  immunities.") 

In  the  opinion  of  the  Attorney  General  this  clause  prohibits  the  enact- 
ment of  a  law  which  applies  to  only  two  of  the  city  courts  in,  the  state.^- 

The   provisions  of  the   constitution    (article   4,   section -34)    concerning 

"5  People    V   Onahan,    170   111.    449    (1897).- 

4"  Booth  v  Opel.    244   111.   317    (1910). 

*7Devine  v  Commissioners  of  Cook  Co.,  84  111.  590  (1877);  Pettibone  v  West 
Chicago  Park  Commissioners,  215  111.  304  (1904);  People  v  Board  of  Election 
Commissioners,    221    111.    9    (1906). 

J«  Reynolds  v  Town  of  Foster,  89  111.  257  (1878);'  People  v  Board  of  Super- 
visors.   223   111.    187    (1906);   Kennedy   v   McGovern,    246   111.   497    (1910). 

49  People  v  Day,    277   111.   543    (1917). 

^"Chicago  Life  Insurance  Co.  v  Auditor  of  Public  Accounts,  101  111.  82 
(1881). 

51  Strong   V    Dignan,    207    111.    385    (1904). 

53 'Report  Attorney   General   1884,   p.   21. 


114  Article  4,  Section  22 

the  practice  and  jurisdiction  of  the  municipal  court  of  Chicago  constitute 
an  exception  to  this  clause.  (See  discussion  article  6,  section  29,  subheading, 
"Constitutional   exceptions    to    rule    of    uniformity.") 


Jurisdiction  of  justices  of  tlie  peace.  In  1881  the  General  Assembly 
passed  a  law  the  effect  of  which  was  to  make  each  county  in  the  state  except 
Cook  County,  a  district  in  which  justices  of  the  peace  elected  therein 
could  exercise  jurisdiction.  Cook  County,  however,  was  divided  into  two 
districts,  and  it  was  provided  that  a  justice  of  the  peace  in  one  district  in 
that  county  could  not  exercise  jurisdiction  in  the  other  district.  The  Su- 
preme Court  held  that  the  law  was  in  conflict  with  this  clause.^^  A  con- 
stitutional amendment  (article  4,  section  34),  adopted  in  1904,  has  made  it 
possible  to  abolish  justices  of  the  peace  and  police  magistrates  in  the  city 
of  Chicago  and  to  limit  the  territorial  jurisdiction  of  the  justices  of  the 
peace  of  Cook  County  outside  the  city  of  Chicago.  (See  discussion  article 
4,  section  34;   article  6,  section  21.) 


Changes  of  venue.  The  General  Assembly  has  no  power  to  make  spe- 
cial provisions  concerning  changes  of  venue  from  the  municipal  court  of  the 
city  of  Chicago.  While  the  constitution  (article  4,  section  34)  gives  the 
General  Assembly  the  power  to  pass  special  laws  with  reference  to  the 
jurisdiction  and  practice  of  the  municipal  court,  it  was  not  intended  to  change 
the  constitutional  rule  prohibiting  special  laws  relating  to  changes  of  venue 
in  civil  and  criminal  cases.  The  right  to  a  change  of  venue  is  not  a  matter 
of  practice.^* 


Incorporating  cities,  towns  and  villages  or  amending  the  charters 
thereof.  While  the  constitution  does  not  have  the  effect  of  abrogating 
the  charters  of  all  cities,  towns  and  villages  organized  under  special  acts 
passed  prior  to  its  adoption,''^  it  does  prevent  the  amendment  of  special 
charters  by  special  laws,  and  such  charters  can  be  amended  only  by  gen- 
eral laws.'"  It  has  been  held,  however,  that  a  special  act  which  repeals  a 
section  of  a  special  charter  is  not  prohibited,  if  the  purpose  and  effect  of  the 
repealing  act  is  to  establish  and  promote  uniformity  with  reference  to  the 
powers  and  duties  of  cities,  towns  and  villages." 

An  Act  which  gives  to  cities,  at  the  option  of  their  councils,  the  power 
to  abolish  or  continue  in  office  city  assessors,  is  in  conflict  with  this  clause 
for  the  reason  that  the  effect  of  such  an  act  would  be  to  promote  dissimi- 
larity in  the  character  and  organization  of  such  municipalities.''^  But  this  does 
not  deny  to  the  General  Assembly  the  power  to  classify  cities,  towns  and 
villages  for  the  purposes  of  legislation,  if  the  classifications  adopted  are 
reasonable  from  the  standpoint  of  the  legislative  purpose  sought  to  be  accom- 
plished.'^® The  rules  with  reference  to  the  classification  of  cities,  towns  and 
villages  are  similar  to  those  concerning  the  classification  of  counties  and 
townships.  (See  discussion  preceding  sub-heading,  "County  and  township 
affairs;"  see,  also,  discussion  subsequent  sub-heading,  "Special  privileges  and 
immunities"). 

By  virtue  of  an  amendment  to  the  constitution  the  General  Assembly 
may  pass  special  laws  with  reference  to  the  local  government  of  the  city  of 
Chicago.     (See  discussion,  article  4,  section  34). 

^People   v   Meech.    101    111.    200    (1882). 

5*Fieg:en   v  Shaeffer.    2.56   Til.   49.3    (1913). 

^Coving-ton    v   City    of   East    St.    I^ouis,    78    Til.    548    (1875). 

^s  Andrews  v  People.  75  111.  605  (1874);  McCormick  v  People,  139  111.  499 
(1891). 

57  People   V   Crawley,    274   111.   139    (1916). 

5«  People    V    Cooper,    83    111.    585    (1876). 

^9  People  v  Board  of  Trustees,  170  111.  468  (1897);  Cummingrs  v  City  of  Chi- 
cago, 144  111.  563  (1893);  Booth  v  Opel,  244  111.  317  (1910);  People  v  Fox,  247 
111.    402    (1910). 


Article  4,  Section  22  115 

Grand  and  petit  jurors.  In  the  case  of  In  re  Scranton""  the  court  said 
that  a  law  exempting  city  firemen  in  the  city  of  Chicago  from  jury  service 
would  be  unconstitutional  under  this  clause  because  it  would  apply  only  to 
the  firemen  in  one  city.  This  clause,  however,  applies  only  to  the  summoning 
and  impaneling  of  grand  and  petit  juries.  The  jury  commissioners  act,  which 
applies  only  to  counties  having  a  poulation  of  more  than  100,000,  was  held  not 
to  be  a  special  law  relating  to  the  summoning  and  impaneling  of  grand  and 
petit  juries  because,  while  the  jury  commissioners  are  charged  with  the  duty 
of  preparing  lists  containing  the  names  of  persons  available  as  jurors,  they 
have  nothing  to  do  with  the  summoning  and  impaneling  of  juries.®^ 


Management  of  common  schools.  This  clause  relates  only  to  the  man- 
agement of  the  common  schools.  It  does  not  forbid  special  laws  with  ref- 
erence to  the  formation  or  support  of  school  districts."^  But  this  rule  must 
be  qualified  to  the  extent  that  a  special  law  with  reference  to  the  formation 
of  school  districts  cannot  arbitrarily  discriminate  between  persons  and  com- 
munities similarly  situated,  for  to  do  so  would  be  to  violate  that  clause  of 
this  section  forbidding  the  enactment  of  special  laws  conferring  special 
privileges.*'^  (See  discussion  subsequent  sub-headings,  "Special  privileges 
and  immunities"  and  "Necessity  for  general  laws  in  other  cases.") 

It  is  interesting  to  note  in  connection  with  this  clause  that,  while  the 
Supreme  Court  has  said  that  this  provision  does  not  prohibit  special  legisla- 
tion with  reference  to  the  support  of  the  common  schools,*'*  the  members  of 
the  convention  intended  that  it  should.  When  the  clause  was  originally  in- 
troduced in  the  convention  it  contained  the  words  "management  and  support." 
On  the  suggestion  of  one  of  the  members  of  the  convention  that  the  word 
"management"  was  broad  enough  to  include  support  the  author  of  the  clause 
amended  it  by  striking  out  the  words  "and  support."     (Debates,  p.  608.) 


Interest  rates.  An  act  of  the  General  Assembly  which  authorizes 
the  creation  of  building  and  loan  associations  with  power  to  loan  money  to 
their  members  at  the  highest  premium  bid  therefor,  does  not  violate  this 
clause.*'^  And  the  General  Assembly  may  fix  the  rate  of  interest  to  be  charged 
on  delinquent  special  assessments  levied  by  parks  for  this  is  not  a  regula- 
tion of  the  rates  of  interest  on  money,  but  is  in  the  nature  of  a  penalty  for 
failure  to  pay  the  assessments.*^"  It  has  also  been  held  that  a  law  which, 
subject  to  certain  conditions,  authorizes  persons  making  loans  of  $300  or 
less  to  charge  more  than  seven  per  cent  interest,  is  not  contrary  to  this 
clause,  the  decision  apparently  being  based  on  the  ground  that  the  classifi- 
cation made  by  the  law  is  a  reasonable  one  in  view  of  the  legislative  pur- 
pose sought  to  be  accomplished.*'^ 


Election  and  polling  places.  A  statute  which  provides  that  it  shall 
not  go  into  effect  in  any  city  or  district  until  adopted  by  the  voters  of  the 
city  or  district  is  not  void  because  it  contains  provisions  prescribing  the 
manner  in  which  the  question  of  its  adoption  shall  be  submitted  to  the 
voters."^ 

«'>74  111.   161    (1874). 

«i  People  V  Onahan,   170   111.   449    (1897). 

<'^  Speight  V  People,  87  111.  595  (1877);  Commissioners  of  Kaskaskia  v  Trus- 
tees  of   Kaskaskia,    249    111.    578    (1911). 

«« People   V   Weis.    275    111.    581    (1916). 

•^Commissioners  of  Kaskasliia  v  Trustees  of  Kaskaskia,  249  111.  578   (1911). 

05  ^inget  V  Quincy  Building-  &  Homestead  Association,  128  111.  67  (1889); 
but   see   Veto   Message   House   Journal    1877.   p.    829. 

o"McChesney   v   People,    99    111.    216    (1881). 

6' People  V  Stokes,  281  111.  159  (1917);  but  see  Report  Attorney  General 
1913,   p.   30. 

«' Perkins  v   Commissioners   of  Cook  Co.,    271  111.    449    (1916). 


116  Article  4,  Section  22 

This  provision  of  the  constitution  does  not  prohibit  the  General  As- 
sembly from  making  reasonable  classifications  with  reference  to  the  estab- 
lishment of  polling  places.  Thus,  an  act  which  directs  the  board  of  super- 
visors in  counties  where  a  soldier's  or  sailor's  home  is  located  "to  fix  and 
establish  th«  place  or  places  for  holding  such  election  ...  at  some 
convenient  .  .  .  place  or  places,  easy  of  access,  on  the  ground  . 
where  such  home  ...  is  located,"  was  held  not  to  contravene  this 
clause  because  it  applies  to  all  persons  in  the  same  class  and  because  there 
is  a  reasonable  basis  for  the  classification.'"*. 


Sale  or  mortgage  of  real  estate  owned  by  minors.  In  Kingsbury  v. 
Sperry'"  it  was  said  that  a  statute  which  would  attempt  to  give  the  right  to 
sue  out  a  writ  of  error  to  the  probate  court  in  a  proceeding  relating  to  the 
sale  of  real  estate  owned  by  a  minor,  without  giving  the  same  right  in  a 
similar  proceeding  in  a  county  court,  would  violate  this  clause.  (See  dis- 
cussion article  6,  sections  20,  29.) 

Fish  and  game.  In  People  v.  Wilcox"^  it  was  held  that  the  purpose  of 
this  clause  was  to  prevent  the  enactment  of  laws  for  the  protection  of  fish 
and  game  that  would  not  "operate  in  all  the  territory  subject  to  the  juris- 
diction of  the  state."  In  that  case  an  act  which  forbade  fishing  in  any  of 
the  waters  of  the  state,  except  Lake  Michigan,  by  means  of  a  hoop  net  or 
seine,  unless  the  persons  desiring  to  use  a  hoop  net  or  seine  procured  a  li- 
cense for  that  purpose  from  the  county  clerk,  was  held  void  because  the  ex- 
clusion of  Lake  Michigan  from  its  operation  rendered  it  a  special  law  re- 
lating to  the  protection  of  fish  and  game.  Three  judges  dissented,  however, 
on  the  ground  that  this  clause  does  not  prevent  the  General  Assembly  from 
making  reasonable  classifications  for  the  purpose  of  legislating  on  the  sub- 
ject of  fish  and  game  protection,  and  that  the  exclusion  of  Lake  Michigan 
in  the  act  under  consideration  was  based  on  a  reasonable  distinction  be- 
tween that  body  of  water  and  other  waters  in  the  state. 

In  the  later  case  of  People  v  Diekmann"-  that  portion  of  the  fis-h  and 
game  act  which  authorized  the  fish  and  game  commission  to  set  aside  "such 
waters  within  the  jurisdiction  of  this  state  as  they  may  judge  best  as  state 
fish  preserves,"  was  sustained  on  the  same  reasoning  as  that  adopted  by  the 
dissenting  judges  in  the  Wilcox  case.  The  court  in  the  Diekmann  case  said: 
"This  provision  applies  equally  to  any  of  the  waters  under  the  jurisdiction 
of  the  state  which  the  fish  and  game  commission  finds  should  be  used  for 
the  preservation  and  propagation  of  fish.  Such  portions  of  the  waters  of  the 
state  may  by  them  be  set  aside  as  a  state  fish  preserve,  as  provided  in 
said  act.     Such  cannot  be  said  to  be  a  local  or  special  law." 


Remitting  fines  and  penalties.  This  clause  prevents  the  General 
Assembly  from  remitting  any  particular  fine  which  has  already  been  im- 
posed. It  is  a  limitation  on  the  power  of  the  General  Assembly  only  and 
does  not  prevent  courts  from  remitting  fines  and  penalties;  nor  does  it 
prevent  the  General  Assembly  from  authorizing  courts  to  remit  fines.  The 
wife  abandonment  act  of  1913  which  gives  the  court  the  power,  in  the  event 
of  a  conviction,  to  direct  that  a  part  or  the  whole  of  the  fine  imposed  shall  be 
paid  to  the  defendant's  wife  does  not  conflict  with  this  provision.'^ 


Increasing  fees  and  allowances  of  officers.  (See  discussion  article  4, 
section  21,  subheading,  "Special  laws  changing  fees,  percentage  or  allowances 
of  public  officers). 

"3  People  V   Board  of   Supervisors,   185   111.   288    (1900);   see   Report  Attorney 
General,   1917-18.   pp.    300,    345. 
^'-•IIS   111.   279    (1887). 
71237   111.   421    (1908). 

"285    111.    97    (1918);    but   see   Veto   Messag-es    1917.    p.    27. 
7«  People   v   Heise,    257    111.    443    (1913). 


Article  4,  Section  ^2  117 

Changing  the  law  of  descent.  An  act  which  prohibits  alien  non-resi- 
dents from  "acquiring  title  to  or  taking  or  holding  lands  or  real  estate  in 
this  state  by  descent,  devise,  purchase  or  otherwise,"  is  not  special  merely 
for  the  reason  that  under  certain  treaties,  between  the  United  States  and 
certain  foreign  governments,  citizens  of  those  governments  not  residing  in 
Illinois  may  inherit  lands  in  Illinois.  It  is  true,  of  course,  that  treaties  are 
the  supreme  law  of  the  land  and  take  precedence  over  acts  of  the  General 
Assembly  but  the  act  is  not  special  for  that  reason.  It  applies  generally 
to  all  alien  non-residents  not  protected  by  such  treaties.  "Moreover,  a 
statute  ought  to  be  upheld  by  the  courts  unless  it  is  clear  that  it  conflicts 
with  the  constitution.  It  is  not  clear,  that  the  constitutional  prohibition 
against  special  legislation  was  intended  to  refer  to  the  operation  of  state 
laws  upon  different  classes  of  foreigners,  but  only  to  their  operation  upon 
different  classes  among  the  citizens  of  the  state.  More  especially  is  it  not 
clear,  that  discrimination  among  different  classes  of  non-resident  aliens 
was  intended  to  be  forbidden  by  the  prohibition  of  special  legislation 
changing  the  law  of  descent."'* 


Special  privileges  and  immunities.  This  clause  is  often  construed  in 
connection  with  the  due  process  of  law  clause  (article  2,  section  2).  Fre- 
quently the  Supreme  Court  will  cite  cases  construing  this  provision  and  the 
due  process  clause  without  distinction.  The  construction  place:!  upon  this 
provision  by  the  Supreme  Court  makes  it  equivalent  to  that  provision  of  the 
United  States  constitution  (14th  am.endment)  which  forbids  a  state  from 
denying  to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws.  As  a  matter  of  fact  the  Illinois  Supreme  Court  has  probably  given 
the  clause  under  consideration  a  broaier  interpretation  than  has  been  given 
to  the  equal  protection  of  the  laws  clause;  that  is,  some  laws  which  have 
been  held  in  conflict  with  this  provision  of  the  constitution  of  Illinois  prob- 
ably would  not  have  been  held  void  under  the  14th  amendment  of  the 
constitution  of  the  United  States. 

In  the  discussion  in  the  first  sub-heading  under  this  section  it  has  been 
pointed  out  that  laws  are  not  local  or  special  merely  because  they  may  be 
operative  in  certain  parts  of  the  state  only,  or  because  they  apply  only  to  a 
certain  class  of  persons.  The  discussion  under  other  preceding  sub-headings 
show  that,  even  as  to  the  subjects  upon  which  the  General  Assembly  is  ex.- 
pressly  forbidden  to  pass  local  or  special  legislation,  that  body  may  make 
reasonable  classifications  for  the  purposes  of  legislation.  And  so  it  is  with 
reference  to  the  clause  now  under  consideration.  A  law  does  not  confer 
special  privileges  merely  because  it  applies  only  to  certain  parts  of  the  state 
or  to  a  certain  cla-^s.  There  may  be  a  sound  basis  for  limiting  its  applica- 
tion, in  which  event  it  will  not  be  in  conflict  with  this  clause.  "A  law  is 
not  to  be  denominated  local  simply  because  it  may  operate  only  in  certain 
of  the  municipalities  of  the  state,  if,  by  its  terms,  it  include?  and  operates 
uniformly  throughout  the  state  under  like  circumstances  and  situations. 
The  cities  and  villages  of  the  state  may  be  classified  for  purposes  of  legisla- 
tion on  the  basis  of  population,  if  such  basis  has  some  reasonable  relation 
to  the  purposes  and  objects  to  be  attained  by  the  legislation  and  in  some 
rational  degree  accounts  for  the  variant  provisions  of  the  enactment.  A 
classification  of  cities,  towns,  and  villages  by  population  cannot  be  arbitrar- 
ily adopted  as  a  ground  or  reason  for  investing  some  of  them  with  powers 
denied  or  not  granted  to  others,  if,  though  there  be  difference  in  population, 
there  is  no  difference  of  situation  or  circumstances  of  the  municipalities 
placed  in  the  different  classes,  and  the  difference  in  population  has  no  reas- 
onable relation  to  the  purposes  and  objects  to  be  attained  by  the  statute."'' 

"Legislation  which  applies  only  to  a  certain  class  in  the  community 
is  not  necessarily  special  legislation,  within  the  meaning  of  the  fundamental 
law  of  the  state.  Laws  are  general  and  uniform  when  alike  in  their  oper- 
ation upon  all  persons  in  like  situation.     When  a  law  is  made   applicable 

T^Wunderle    v   Wunderle,    144    111.    40    (1893). 
-L'Hote   V  Village   of  Milford,    212   111.    418    (1904). 


.118  Article  4,  Section  22 

only  to  one  class  of  individuals,  however,  there  must  be  some  actual,  sub- 
stantial difference  between  the  individuals  so  classified  and  other  individuals 
in  the  state  or  community,  when  considered  with  reference  to  the  purposes 
of  the  legislation.  The  class,  if  the  law  confers  a  benefit  upon  it,  must  be 
composed  of  individuals  posse?  sing  in  common  some  disabiliiy,  attribute  or 
qualification,  or  in  some  condition  marking  them  as  pi'oper  objects  in  whom 
to  vest  the  specific  right  granted  unto  them.  Members  of  the  medical  pro- 
fession may  properly  be  placed  in  one  class,  and  constitutional  laws  ap- 
plicable to  that  class  alone,  relating  to  the  practice  of  medicine,  may  be 
enacted,  but  a  statute  regulating  the  descent  of  property  could  not  be  valid 
if  it  applied  only  to  that  class."" 

"Not  only  must  the  law  operate  generally  upon  all  the  individuals 
composing  a  class  to  whom  privileges  are  granted,  but  there  must  be  a 
sound  basis,  in  reason  and  principle,  for  regarding  the  class  of  individuals 
as  a  distinct  and  separate  class  ...  a  class  cannot  be  created  by 
arbitrary  declaration  of  the  law-making  power  and  endowed  with  special 
legislative  favors.  It  is  essential  to  the  validity  of  the  classification,  in 
such  instances,  it  shall  be  based  on  material  distinctions  in  the  situation 
and  circumstances  of  the  individuals  who  are  to  be  embraced  therein,  and 
the  grounds  of  distinction  and  classification  must  have  relation,  in  reason 
and  principle,  to  the  privileges  proposed  to  be  granted  to  the  individuals, 
as  a  class,  by  the  proposed  legislation."" 

The  General  Assembly  may  pass  a  law  regulating  warehouses  without 
violating  this  clause  of  the  constitution  for  the  operation  of  a  warehouse  is 
a  separate  and  distinct  business  and  constitutes  a  class  in  itself.^*  An  act 
which  bars  a  suit  for  damages  for  personal  injuries  against  a  city,  town  or 
village  unless  written  notice  of  the  claim  for  damages  is  given  within  six 
months  after  the  cause  of  action  accrues  is  not  special,  even  though  coun- 
ties, townships  and  other  municipal  corporations  are  not  included  in  the  act 
for,  with  respect  to  this  matter,  there  is,  in  the  opinion  of  the  court,  a  reas- 
onable basis  for  classification  as  between  the  several  kinds  of  municipali- 
ties.''* A  law  regulating  the  business  of  plumbing  may  prescribe  different 
rules  and  regulations  with  reference  to  that  business  in  cities  and  villages 
of  small  population  than  in  cities  of  greater  population  because  a  less  com- 
plicated system  of  plumbing  will  be  required  in  the  smaller  communities.**' 
It  is  proper  for  the  General  Assembly  to  require  that  a  bank  in  a  large  city, 
shall  have  a  larger  capital  stock  than  a  bank  in  a  smaller  community.**^ 
An  act  providing  that  women  may  not  work  more  than  ten  hours  in  any 
one  day  in  a  hotel  is  not  a  special  act  merely  because  it  does  not  include 
boarding  houses.**^  And  an  act  to  regulate  the  practice  of  medicine  does 
not  confer  special  privileges  because  it  exempts  from  the  provisions  thereof 
persons  who  have  been  continuously  engaged  in  the  practice  of  medicine 
for  a  period  of  ten  years  prior  to  the  passage  of  the  law.**^ 

An  act  which  grants  to  manufacturers  of  beer,  soda  and  mineral  water 
the  right  to  have  issued  a  search  warrant  for  the  purpose  of  recovering 
bottles  and  containers  bearing  the  names  of  such  manufacturers  is  special 
and  void  because  other  manufacturers  of  goods  sold  in  similar  bottles  and 

^^  Jones  v  C.   R.   I.   &  P.   Ry.   Co.,   231   111.   302    (1907). 
"People   v  Board  of   Supervisors,    185  111.   288    (1900). 
'SMunn  V  People,   69   111.   SO    (1873). 
79E,rford   v   City   of   Peoria,    229   111.    546    (1907). 

80  Douglas  V  People,  225  111.  536  (1907);  see,  also  L'Hote  v  Milford,  212  111. 
418  (1904);  C.  T.  R.  R.  Co.,  v  Greer,  223  111.  104  (1906);  People  v  Edmands, 
252    111.    108    (1911);    People   v   Grover.    258    III.    124    (1913). 

81  People   V   Adams   State   Bank,    272    111.    277    (1916). 
83  People   V   Elerding,    254    111.    579    (1912). 

«» Williams  v  People,  121  111.  84  (1887);  see,  also,  Kettles  v  People,  221 
111.  221  (1906);  People  v  Evans.  247  111.  547  (1910);  People  v  Logan,  284  111.  S3 
(1918).  For  other  coses  in  which  legislative  classifications  have  been  sus- 
tained, see  Vogel  v  Pekoe,  157  111.  339  (1895);  Arms  v  Ayer,  192  111.  601  (1901); 
People  V  Nellis,  249  111.  12  (1911);  People  v  Kaelber,  253  111.  552  (1912>;  People 
v  Brady,  262  111.  578  (1914);  G.  S.  Johnson  Co.  v  Beloosky,  263  111.  363  (1914); 
Martens  V  Brady,  264  111.  178  (1914);  People  v  Solomon,  265  111.  28  (1914); 
People  V  City  of  Rock  Island,  271  111.  412  (1916);  Perkins  v  Commissioners  of 
Cook  Co.,  271  111.  449  (1916);  People  v  Gordon,  274  Til.  482  (1916);  Casparis 
Stone  Co.  v  Industrial  Board,  278  111.  77  (1917);  People  v  Stokes,  281  111.  159 
(1917). 


Article  4,  Section  22  119 

containers  are,  denied  the  privileges  conferred  by  the  act  on  others  of  the 
same  class.*^  An  act  which  has  the  effect  of  prohibiting  the  sale  of  patented 
medicines  by  persons  other  than  registered  pharmacists,  although  it  re- 
quires no  inspection  of  patented  medicines  sold  by  such  pharmacists,  is 
void  because  it  confers  a  special  privilege  on  registered  pharmacists.**'  An 
act  which  makes  it  a  criminal  offense  for  an  employer  to  discharge  an  em- 
ploye because  the  employe  is  a  member  of  a  labor  union  is  void  as  creating 
an  unwarrantable  distinction  between  union  and  non-union  men.*"  An  act 
which  requires  employers  of  labor  to  disclose  to  prospective  employes,  re- 
siding in  another  state,  or  in  some  place  in  this  state  other  than  the  place 
of  the  proposed  employment,  the  existence  of  labor  disputes  at  the  proposed 
place  of  employment,  is  void  because,  in  the  opinion  of  the  court,  it  dis- 
criminates against  prospective  employes  residing  in  the  immediate  vicinity 
of  the  place  of  the  contemplated  employment.*'  An  act  which  requires  coal 
mine  operators  to  maintain  washrooms  for  their  employes  cannot  be  sus- 
tained, if  it  does  not  also  apply  to  other  employers  engaged  in  businesses 
in  which  the  employes  become  covered  with  dust  and  grease  in  much  the 
same  manner  as  mine  workers,  for  the  effect  of  such  a  law  would  be  to  im- 
pose special  burdens  on  coal  mine  operators  and  thus  confer  special  privil- 
eges on  other  employers  in  the  same  general  class.*'*  A  law  granting  exemp- 
tion from  service  of  civil  process  to  members  of  the  General  Assembly,  and 
not  to  others  similarly  situated  is  unconstitutional  as  conferring  special 
privileges  on  members  of  the  General  Assembly.*"  A  law  which  prohibits 
the  use  of  second  hand  material  in  mattresses,  quilts  and  comforters  manu- 
factured for  sale,  and  which  does  not  apply  to  the  manufacture  of  pillows,  is 
class  legislation  forbidden  by  this  clause  of  the  constitution.""  A  law 
authorizing  the  formation  of  high  school  districts  which  is  so  worded  that 
certain  territory  in  the  state,  though  similarly  situated,  cannot  be  organized 
as  a  high  school  district  is  void  for  the  reason  that  it  confers  special 
privileges  on  the  people  residing  in  territory  that  may  be  so  organized.*^ 
And  an  act  which  permits  cities  having  a  population  of  more  than  20,000  to 
use,  for  general  city  purposes,  all  of  the  road  and  bridge  taxes  levied  and 
collected  on  property  within  their  respective  limits  is  void  because,  with 
respect  to  the  subject  matter  of  the  act,  there  is  no  basis  for  classifying 
cities  on  the  basis  of  population,  or  for  discriminating  between  cities  on  the 
one  hand  and  towns  and  villages  on  the  other."- 

It  is  clear  from  the  decisions  of  the  Supreme  Court  just  mentioned  that 
a  law  is  not  necessarily  local  or  special  legislation  conferring  special  priv- 
ileges or  immunities  because  it  applies  only  to  certain  parts  of  the  state  or 
only  to  a  certain  class.  The  General  Assembly  may  classify  for  the  purposes 
of  legislation  and  laws  which  contain  classifications  will  be  sustained  if 
there  is  any  reasonable  basis  for  the  classifications.  But  what  is  a  reason- 
able classification  is  always  a  question  for  the  court  and  it  is  oftentimes 
a  difficult  matter  to  distinguish  between  cases  in  which  classifications  are 
upheld  and  cases  in  which  classifications  are  held  void.  (See  discussion  pre- 
ceding sub-headings). 

s^  Lippmann  v  People,  175  111.  101  (1898);  Horwich  v  Walker-Gordon  Labora- 
tory Co.,   205   111.    497    (1903). 

85 Noel  v  People,    187   111.   587    (1900). 

«8  Gillespie  v  People,  188  111.  176  (1900);  see,  also,  Fiske  v  People,  188  111. 
206    (1900);    Mathews   v   People,    202    111.    389    (1903). 

S'Josma   v   Western    Steel   Car   and    Foundry   Co.,    249    111.    508    (1911). 

88  Star ne  v  People,  222  111.  189  (1906);  but  see  People  v  Solomon,  265  111.  28 
(1914). 

89  Phillips  v   Browne,    270    111.    450    (1918). 

90  People   V   Weiner,    271    111.    74    (1915). 

»i  People  v  Weis,  275  111.  581  (1916);  see.  also,  People  v  Rinaker,  252  111. 
266  (1911).  For  other  cases  in  which  legislative  classifications  have  been  held 
void,  see  Jones  v  C.  R.  I.  &  P.  Ry.  Co..  231  111.  302  (1907);  Manowsky  v  Stephan, 
233  111.  409  (1908);  Off  &  Co.  v  Moorehcad,  235  111.  40  (1908);  People  v  Schenck, 
257  111.  384,  (1913);  Miller  v  Sincere,  273  111.  194  (1916);  Board  of  Administra- 
tion v  Miles,   278   111.   174    (1917);   People  v  Campbell,   285  111.   557    (1918). 

»-' People   v   Fox,    247    111.    402    (1910). 


li^O  Article  4,  Section  22 

It  should  also  be  noted  that  this  section  of  the  constitutiou.  provides  that 
"the  General  Assembly  shall  not  pass  local  or  special  laws  . 
granting  to  any  corporation,  association  or  individual  any  special  or  ex- 
clusive privilege,  immunity  or  franchise  whatever."  Apparently,  two  ele- 
ments are  necessary  before  this  prohibition  becomes  operative:  (1)  The 
law  must  be  a  local  or  special  law.  (2)  It  must  confer  special  privileges, 
immunities  or  franchises.  The  Supreme  Court,  however,  as  indicated  by  the 
foregoing  discussion  of  cases,  has  practically  disregarded  the  first  element. 
If  a  law  adopts  a  classification  which  the  court  regards  as  improper,  it  will 
be  held  to  violate  this'^section,  although  it  is  in  reality  a  general  law.  Ap- 
parently, in  the  opinion  of  the  court,  a  law  making  an  improper  classifi- 
cation is,  by  virtue  of  that  fact,  a  local  or  special  law. 

With  reference  to  special  laws  granting  special  franchises,  also  for- 
bidden by  this  clause,  it  has  been  held  that  the  power  to  appoint  a  state 
officer  is  a  franchise,  and  that  a  law  which  authorizes  private  corporations 
to  appoint  the  officers,  who  shall  be  charged  with  the  duty  of  enforcing 
the  provisions  thereof,  confers  a  special  franchise  on  those  corporations  and 
is,  to  that  extent,  void."^ 

While  this  clause  of  the  constitution  expresses  the  public  policy  of  the 
state  as  being  opposed  to  any  kind  of  a  monopoly,®'  it  does  not  declare  the 
public  policy  of  the  state  to  be  opposed  to  the  elimination  of  competition  in 
certain  casps  and  the  provision  of  the  public  utilities  act  which  authorizes 
one  public  utility,  subject  to  the  approval  of  the  public  utilities  commission, 
to  acquire  stock  in  another  utility  is  not  in  conflict  therewith.  "The  public 
policy  of  the  state,  as  declared  by  section  22  of  article  4  of  the  constitution, 
is  not  opposed  to  the  elimination  of  competition  in  all  cases,  but  only  applies 
where  a  monopoly,  in  the  sense  in  which  that  word  was  used  in  the  common 
law,  would  be  thereby  created,  viz.,  where  competition  is  eliminated  by  con- 
ferring upon  a  specified  person  or  corporation  the  right  to  exclude  all  others 
from  engaging  in  the  same  business  in  the  same  field  of  operation,  or  by  up- 
holding the  validity  of  contracts  and  agreements  which  place  it  within  the 
power  of  certain  individuals  or  corporations  to  control  production  and  fix 
prices,  thereby  resulting  in  injury  to  the  public."^' 


Necessity  for  general  laws  in  other  cases.  This  clause  which  requires 
the  enactment  of  general  laws  in  all  cases  where  such  laws  are  applicable 
addresses  itself  to  the  General  Assembly  alone.  When  that  body  concludes 
that  a  special  law  is  necessary  on  a  subject  not  expressly  enumerated  in  this 
section,  and  with  reference  to  which  the  constitution  does  not  elsewhere  for- 
bid special  laws,  its  determination  of  this  question  is  final  and  not  subject 
to  review  by  the  courts.'-"'  Thus,  the  General  Assembly,  because  the  consti- 
tution does  not  expressly  forbid  special  laws  on  those  subjects  may,  as 
pointed  out  in  the  first  subheading  under  this  section,  pass  special  laws  with 
reference  to  drainage  and  sanitary  districts  and  parks.  But  it  must  be  re- 
membered that  even  with  respect  to  subjects  on  which  the  constitution  does 
not  expressly  forbid  special  legislation  the  provisions  of  the  clause  relating 
to  special  privileges,  immunities  and  franchises  must  be  observed.  The  con- 
stitution does  not  expressly  forbid  special  laws  with  reference  to  the  forma- 
tion of  school  districts  but  a  law  relating  to  the  formation  of  school  districts 
may  discriminate  between  persons  and  communities  similarly  situated,  in 
which  event  it  is  void  as  conferring  special  privileges.'-*'  And  a  law  authoriz- 
ing the  formation  of  forest  preserve  districts,  if  it  is  not  applicable  to  all 

03  Lasher  v  People,  183  111.  226  (1899);  but  see  State  Board  of  Agriculture 
V  Brady,  266  111.  592  (1915);  Illinois  P^armers'  Institute  v  Brady,  267  111.  98 
(1915);  see,  also,  Morrison  v  People,  196  111.  454  (1902);  Report  Attorney  General 
1910,    pp.    85,    125:    1912,    p.    126. 

i*^' People  V  Chicag-o  Gas  Trust  Co.,  130  111.  268  (1889);  Dunbar  v  American 
Telephone    Co.,    238    111.    456    (1909). 

»=  Public    Utilities   ComiTiission    v    Romberg,    275    111.    432    (1916). 

o«  Owners  of  Lands  v  People,  113  111.  296  (1886);  People  v  Bowman,  247  111. 
276  (1910);  Commissioners  of  Lincoln  Park  v  Farhnev,  250  111.  256  (1911); 
Herschbach    v    Kaskaskia    Sanitary    District,    265    111.    388    (1914). 

07  People   V   Weis,    275   111.    581    (1915). 


Article  4,  Sections  23,  24  121 

persons  and  communities  in  substantially  the  same  situation,  is  void  even 
though  the  constitution  does  not  expressly  prohibit  special  legislation  with 
reference  to  forest  preserve  districts."' 

In  connection  with  this  clause  it  must  be  borne  in  mind,  however,  that 
other  sections  of  the  constitution  require  the  enactment  of  general  laws  on 
subjects  not  enumerated  in  this  section  and  that,  in  these  cases,  the  ques- 
tion whether  or  not  a  law  is  general  is  a  question  for  the  courts. 

(For  appropriations  in  private  laws,  see  discussion  article  4,  section  16. 
For  uniformity  relating  to  organization,  jurisdiction,  etc.,  of  courts,  justices 
of  the  peace,  etc.,  see  discussion  article  6,  sections  21,  29.  For  taxation  and 
tax  exemptions,  see  discussion  article  9,  sections  1,  3.  For  fees  of  state, 
county  and  township  officers,  see  discussion  article  10,  sections  11,  12.  For 
township  organization,  see  discussion  article  10,  section  5.  For  corporations, 
see  discussion  article  11,  sections  1,  2.  See,  also,  discussion  article  2,  section 
2;  article  4,  section  34;  and  see,  also,  article  6,  section  18;  article  10,  section  4.) 


Section  23.  The  General  Assembly  shall  have  no  power  to  re- 
lease or  extinguish,  in  whole  or  in  part,  the  indebtedness,  liability, 
or  obligation  of  any  corporation  or  individual  to  this  State  or  to  any 
municipal  corporation  therein. 


In  the  opinion  of  the  Attorney  General  a  law  which  would  prevent  the 
bringing  of  suits  on  the  bonds  of  state  officers  after  five  years  from  the  date 
of  the  expiration  of  their  terms  of  office  would  be  unconstitutional  as  being 
in  violation  of  this  section;'*''''  and  the  same  officer  has  held  that  an  act  which 
merely  authorizes  a  municipality,  if  it  sees  fit,  to  cancel  contracts  for  public 
improvements  and  to  pay  more  than  the  contract  price  to  the  original  con- 
tractor is  void,  even  though  it  is  not  mandatory.^  But  a  municipality  may 
release  a  liability  in  its  favor  for  something  deemed  of  an  equal  or  greater 
value.^ 


Section  24.  The  House  of  Representatives  shall  have  the  sole 
power  of  impeachment;  but  a  majority  of  all  the  members  elected 
must  concur  therein.  All  impeachments  shall  be  tried  by  the  Senate; 
and  when  sitting  for  that  purpose,  the  Senators  shall  be  upon  oath, 
or  affirmation  to  do  justice  according  to  law  and  evidence.  When 
the  Governor  of  the  State  is  tried,  the  Chief  Justice  shall  preside. 
No  person  shall  be  convicted  without  the  concurrence  of  two-thirds 
of  the  Senators  elected.  But  judgment,  in  such  cases,  shall  not  ex- 
tend further  than  removal  from  office,  and  disqualification  to  hold 
any  office  of  honor,  profit  or  trust  under  the  government  of  this 
State.  The  party,  whether  convicted  or  acquitted,  shall  neverthe- 
less, be  liable  to  prosecution,  trial,  judgment  and  punishment  ac- 
cording to  law. 

(See  article  5,  section  15;  article  6,  section  30). 

s^  People   V   Rinaker.    252    111.    266    (1911). 

^^  Report  Attorney  General  1914,  p.   783,   Veto  Message  Senate  Journal  1907- 
08,    p.    1761. 

1  Veto  Messages  1919,  p.  40. 

2  City    of   Chicago   v    P.    C.    C.   &    St.    L.    Ry.    Co.,    244    111.    220    (1910). 


122  Article  4,  Sections  25,  26 

Section  25.  The  General  Assembly  shall  provide,  by  law,  that 
the  fuel,  stationery,  and  printing  paper  furnished  for  the  use  of  the 
State ;  the  copying,  printing,  binding  and  distributing  the  laws  and 
journals,  and  all  other  printing  ordered  by  the  General  Assembly 
shall  be  let  by  contract  to  the  lowest  responsible  bidder;  but  the 
General  Assembly  shall  fix  a  maximum  price ;  and  no  member  there- 
of, or  other  officer  of  the  State,  shall  be  interested,  directly  or  in- 
directly, in  such  contract.  But  all  such  contracts  shall  be  subject  to 
the  approval  of  the  Governor,  arid  if  he  disapproves  the  same  there 
shall  be  a  re-letting  of  the  contract,  in  such  manner  as  shall  be  pre- 
scribed by  law. 


(See  article  4,  section  15;   article  8,  section  4). 


Section  26.     The  State  of  Illinois  shall  never  be  made  defendant 
in  any  court  of  law  or  equity. 


Suits  against  the  state  in  its  own  name.  The  state  cannot  be  made 
a  party  defendant  in  a  proceeding  to  levy  a  special  assessment  to  defray 
the  cost  of  constructing  a  local  improvement,  even  though  it  owns  property 
that  will  be  benefited  by  the  improvement.^  It  is  improper  for  the  Attorney 
General  to  file  a  cross  petition  in  a  condemnation  proceeding  because  a 
cross  petitioner  in  such  a  proceeding  is  in  effect  a  defendant;*  and  this 
seems  to  be  true  even  though  it  has  been  held  proper  to  require  the  state 
to  pay  the  costs  in  an  abandoned  condemnation  proceeding  in  which  it  was 
the  petitioner.^  But  it  is  entirely  proper  for  a  defendant  in  a  suit  in  equity 
brought  by  the  state  to  file  a  cross  bill.* 


Suits  against  state  officers.  As  long  as  a  State  officer  is  acting  witliin 
the  scope  of  his  authority,  a  suit  against  him  is  a  suit  against  the  state 
and  cannot  be  maintained.  Thus,  a  suit  cannot  be  maintained  against  the 
penitentiary  commissioners  to  recover  damages  for  breach  of  a  contract  to 
furnish  convict  labor,  or  to  compel  performance  thereof."  Nor  can  a  suit  for 
damages  for  personal  injuries  sustained  as  a  result  of  the  falling  down  of  a 
grandstand  at  the  state  fair  grounds  be  maintained  against  the  state  board 
of  agriculture.**  But  a  state  officer  who  attempts  to  transcend  his  authority, 
may  be  restrained  by  the  courts.  An  officer  who  attempts  to  enforce  the 
collection  of  fees  under  an  improper  interpretation  of  a  statute,^  or  who  is 
about  to  pay  out  money  under  an  unconstitutional  statute,^"  may  be  enjoined 
by  the  courts.  A  state  officer,  who  attempts  to  deprive  an  individual  of  the 
free  enjoyment  of  his  property  cannot  set  up  as  a  defense  to  an  injunction 
suit  against  him  the  fact  that  the  suit  against  him  is  in  effect  a  suit 
against  the  state,  for  by  his  actions  in  interfering  with  the  use  of  another's 
property  he  is  transcending  his  authority."     And  a  civil  service  employee 

3  In  re  City  of  Mt.  Vernon,  147  111.  359  (1893);  Report  Attorney  General 
1900,   p.   191;   see.  aLso,   City  of  Chicago   v  City   of  Chicago,   207    111.   36    (1904), 

*  People   V   Sanitary  District  of  Chicago,    210   111.   171    (1904). 

"^Deneen  v  Unverzagt,  225  111.   378    (1907). 

oBrundage   v   Knox,    279    111.    450    (1917). 

'People   V   Dulaney,    96    111.    503    (1880). 

sMinear  v  State  Board  of  Agriculture,  259  111.  549  (1913);  but  see  State 
Board  of  Agriculture  v  Brady,   266   111.   592    (1915). 

"G.   A.   Insurance   Co.   v   Van   Cleave,    191    111.    410    (1901). 
i»  Burke   v    Snively,    20S    111.    328    (1904). 
"Joos  v  Illinois  National  Guard,   257   111.   138    (1913). 


Article  4,  Section  27-29  123 

who  has  been  discharged  without  cause  is  entitled  to  a  writ  of  mandamtis 
to  compel  the  Auditor  of  Public  Accounts  to  issue  a  warrant  for  the  salary 
justly  due  him  for  the  time  that  he  was  illegally  prevented  from  performing 
the  duties  of  his  position.^-  (See  discussion  article  3,  subheading,  "Inde- 
pendence of  departments"). 


Claims  against  the  state.  This  section  does  not  prevent  the  General 
Assembly  from  appropriating  money  to  pay  just  claims  against  the  state.^* 
(See  discussion  article  4,  section  16,  subheading,  "Private  laws"). 


Section  27.  The  General  Assembly  shall  have  no  power  to 
authorize  lotteries  or  gift  enterprises,  for  any  purpose,  and  shall 
pass  laws  to  prohibit  the  sale  of  lottery  or  gift  enterprise  tickets  in 
this  State. 


Section  28.     No  law  shall  be  passed  which  shall  operate  to  ex- 
tend the  term  of  any  public  officer  after  his  election  or  appointment. 


While  a  constitutional  amendment  may  have  the  effect  of  extending  the 
term  of  a  public  officer  after  his  election,"  the  General  Assembly  has  no 
power  to  add  seven  months  to  the  terms  of  the  county  superintendents  of 
schools  then  in  ofRce.^^  Nor  can  the  General  Assembly  pass  a  law  pro- 
viding for  the  election  in  1902  of  a  successor  to  a  judge  whose  term  of 
office  expired  in  1899.^^ 


Section  29.  It  shall  be  the  duty  of  the  General  Assembly  to 
pass  such  laws  as  may  be  necessary  for  the  protection  of  operative 
miners,  by  providing  for  ventilation,  when  the  same  may  be  re- 
quired,  and  the  construction  of  escapement  shafts,  or  such  other 
appliances  as  may  secure  safety  in  all  coal  mines,  and  to  provide  for 
the  enforcement  of  said  laws  by  such  penalties  and  punishments  as 
may  be  deemed  proper. 


This  section  applies  only  to  operative  miners  and  not  to  a  carpenter 
employed  to  work  on  buildings  outside  of  a  mine."  The  purpose  of  this 
section  is  to  protect  the  operative  miner  while  he  is  working  in  a  mine, 
and  not  after  he  has  left  it.  And  it  relates  not  to  the  health  of  the  miner 
but  to  his  protection  from  personal  injury  while  he  is  in  the  mine.^^  With 
respect  to  protection  from  personal  injury,  legislation  for  miners  as  a  class 
is  permitted  by  the  constitution  but  beyond  that  the  General  Assembly  may 
not  go.  Legislation  for  miners  on  other  subjects  is  void  unless  it  applies 
to  all  persons  similarly  situated.^"     Thus,  the  miner's  wash  room  act  was 

13  People    V    Stevenson,    272    111.    215    (1916). 

13  Fergus    v    Russel,    277    III.    20    (1917). 

li  People   v   Board   of   Supervisors,    100   111.    495    (1881). 

1^  Report   Attorney   General    1913,   p.    35. 

i«  People  V  Knopf.  198  111.  340  (1902);  Veto  Message  Senate  Journal  1873,  p. 
413;  but  see  Crook  v  People.   106   111.   237    (18S3). 

i-^  Rogers    v   Carterville    Coal    Co.,    254    111.    104    (1912). 

i^Starne    v    People.    222    111.    189    (1906). 

i»Millett  v  People.  117  111.  294  (1886);  Harding  v  People,  160  111.  459  (1896): 
Cook  v  Big  Muddy  Mining  Co.,   249   111.   41    (1911). 


124  Article  4,  Sections  30,  31 

held  void  as  special  legislation  because  it  did  not  apply  to  foundry  men 
and  others  engaged  in  employments  in  which  contact  with  grease  and  dirt 
is  unavoidable.-" 

Contributory  negligence  is  no  defense  to  an  action  for  damages  for 
personal  injuries  sustained  as  a  result  of  a  wilful  violation  of  a  statute 
passed  pursuant  to  the  command  of  this  section  of  the  constitution.^^  And 
mine  owners  may  be  required  to  pay  fees  for  inspection  services  rendered 
by  the  state.^^^ 


Section  30.  The  General  Assembly  may  provide  for  establish- 
ing and  opening  roads  and  cartways,  connected  with  a  public  road, 
for  private  and  public  use. 


It  was  held  by  the  Supreme  Court  that  under  the  constitution  of  1848 
the  General  Assembly  had  no  power  to  provide  for  the  establishment  of  a 
private  roadway  over  the  lands  of  another  without  his  consent.^  This  sec- 
tion of  the  constitution  was  adopted  for  the  purpose  of  overcoming  the 
court's  previous  holding.     (Debates,  p.  889). 


Section  31.  The  General  Assembly  may  pass  laws  permitting 
the  owners  of  lands  to  construct  drains,  ditches  and  levees  for  Agri- 
cultural, Sanitary  or  mining  purposes,  across  the  lands  of  others, 
and  provide  for  the  organization  of  drainage  districts,  and  vest  the 
corporate  authorities  thereof,  with  power  to  construct  and  maintain 
levees,  drains  and  ditches,  and  to  keep  in  repair  all  drains,  ditches 
and  levees  heretofore  constructed  under  the  laws  of  this  State,  by 
Special  Assessments  upon  the  property  benefited  thereby.  -' 


In  general.  This  section  was  amended  in  1878.  It  was  held  that  under 
the  original  section,  drainage  districts  could  not  be  vested  with  power 
to  levy  special  assessments.-^  The  purpose  of  the  amendment  was  to  give 
the  General  Assembly  the  power  to  authorize  drainage  districts  to  levy 
special  assessments.  (See  discussion  article  9,  section  9,  subheading,  "Mu- 
nicipalities that  may  be  authorized  to  make  local  improvements  by  special 
assessments  or  by  special  taxation"). 

While  this  section  is  not  self-executing  or  mandatory  upon  the  General 
Assembly  to  pass  laws  providing  for  the  organization  of  drainage  districts,-" 
it  is  a  general  grant  of  power  to  the  General  Assembly,  and  confers  upon 
that  body,  by  implication,  all  other  powers  necessary  to  make  the  general 

=oStarne  v  People,   222  111.   1S9    (1906);   People  v  Solomon,   265   111.   28    (1914). 

2iCarterville  Coal  Co.  v  Abbott,  181  111.  495  (1899);  Brunnworth  v  Kerens 
Coal  Co.,   260   111.  202    (1913). 

^^C.   W.   &  V.   Coal  Co.   V  People.   181   111.   270    (1899). 

23Nesbltt  V   Trumbo.    39   111.    110    (1866);   Crear  v   Crossly,   40   111.   175    (1866). 

^  As  amended  by  the  first  amendment  to  the  constitution.  The  amendment 
was  proposed  by  resolution  of  the  General  Assembly  in  1877.  It  was  ratified  by 
the  voters  on  November  5,  1878.  and  proclaimed  adopted  on  November  29,  1878. 
The   section   as    it   originally   appeared    is   as   follows: 

"Section  31.     The  General  Assembly  may  pass  laws  permitting'  the  owners 
or    occupants   of    lands    to    construct    drains    and    ditches,    for    agricultural    at; 
sanitary    purposes,    across    the    lands    of    others." 

"■'-'Updike    V    Wright,    81   111.    49    (1876). 

-"  Hollenbeck   v   Detrich.    162    111.    388    (1896). 


Article  4,  Section  31  125 

grant  effective/'  The  power  of  the  General  Assembly  with  reference  to 
drainage  districts  is  practically  unlimited.  The  General  Assembly  "has 
the  right  at  all  times  to  regulate  and  control  them,  their  franchises  and 
their  funds,  and  to  alter,  modify  of  abolish  them  at  pleasure  so  [provided] 
that  their  property  is  not  diverted  from  the  uses  and  objects  for  which  it 
was  given  or  purchased."-^  The  General  Assembly  may  authorize  the  an- 
nexation of  unorganized  lands  benefited  by  the  necessary  drains  of  an  or- 
ganized district,-"  and  it  may  require  an  upper  district  to  contribute  toward 
the  cost  of  an  outlet  drain,  constructed  by  a  lower  district,  but  used  by  both 
districts.^"  Laws  may  be  passed  creating  special  districts,^^  or  directing 
the  corporate  authorities  of  cities,-^  or  highway  commissioners,^^  to  act  as 
drainage  commissioners  for  a  district  comprised  of  the  territory  embraced 
within  the  limits  of  the  municipality  or  political  subdivision  in  which  they 
nave  jurisdiction.  (See  discussion  subsequent  subheading,  "Corporate  au- 
thorities"). 

This  section  of  the  constitution  probably  does  not  deprive  the  General 
Assembly  of  the  power  to  authorize  the  formation  of  drainage  districts, 
with  power  to  construct  drains,  ditches  and  pumping  plants  by  general 
taxation.^*  As  a  matter  of  fact,  a  city  which  is  organized  as  a  drainage 
district,  while  it  may  install  a  pumping  plant  under  a  special  assessment 
proceeding,  cannot  levy  special  assessments  to  defray  the  cost  of  the  opera- 
tion and  maintenance  thereof,  but  must  do  so  by  general  taxation.'^  The 
ordinary  drainage  district,  however,  may  levy  special  assessments  to  pay 
the  cost  of  operating  and  maintaining  a  pumping  plant.^"  The  distinction 
is  that  a  city  has  the  power  of  levying  general  taxes,  while  an  ordinary 
drainage  district,  under  the  law  authorizing  its  creation,  generally  has  no 
power  to  levy  general  taxes. 

A  drainage  district  may  be  given  the  power  to  acquire  its  right  of  way 
for  ditches  and  drains  by  eminent  domain  proceedings."  (See  article  2,  sec- 
tion 13). 


Corporate  authorities.  It  is  well  settled  that,  under  the  provisions 
of  sections  9  and  10  of  article  9,  only  the  corporate  authorities  of  a  munici- 
pal corporation  may  levy  taxes  for  its  needs,  and  that  the  corporate  authori- 
ties of  a  municipality  are  those  persons  who  are  either  elected  by  the 
people  of  the  municipality  or  selected  in  some  mode  assented  to  by  them. 
In  the  earlier  drainage  cases,  the  court  took  the  view  that  this  rule  did  not 
apply  to  drainage  districts,  and  that  unless  the  General  Assembly  deemed 
it  necessary,  there  was  no  need  that  the  corporate  authorities  of  such  dis- 
tricts should  be  elected  by  the  people  or  selected  in  some  mode  to  which 
the  people  had  assented.''^  It  must  be  admitted,  however,  that  the  court,  in 
those  cases  was  influenced  by  the  view  that,  in  the  drainage  law  then  under 
consideration,  a  drainage  district  could  not  be  organized  except  on  a 
petition  of  a  majority  of  the  land  owners  in  the  proposed  district.'''  The 
court  apparently  was  of  the  opinion  that  the  assent  of  the  people  in  a  drain- 

-■^Kilgour   v    Drainage    Commissioners.    Ill    111.    342    (1884). 

"^People  V  Bowman,  247  111.  276  (1910);  see  also,  Hollenbeck  v  Detrich, 
162   111.   388    (1896);   Citv  of  Chicago   v  Town   of  Cicero,    210   111.    290    (1904). 

-J  People    V    Swearingen,    273    111.    630    (1916). 

•''0  Drainage  Commissioners  v  Rector  Drainage  District,  266  111.  536  (1915). 
See  People  v  Block,   276   111.    286    (1916). 

«i  Owners  of  Lands  v  People.  113  111.  296  (1885);  Herschbach  v  Kaskaskia 
Sanitary    District,    265    111.    388    (1914). 

32  Village  of  Hyr1e  Park  v  Spencer.   118   111.   446    (1886). 

'^'^  Kilgour  V  Drainage  Commissioners,  111  111.  342  (1884);  see,  also,  Huston 
v    Clarke.    112    111.    344     (1884). 

^MVilson  V  Board   of   Trustees.    133    111.    443    (1890). 

s"' McChesney   v    Village    of   Hyde    Park,    151    111.    634    (1894). 

■■"'Brooks   V   Hatch.    261    111.    179    (1913). 

«^C.  C.  C.  &  St.  U  Ry.  Co.  v  Polecat  Drainage  District,  213  111,  83  (1904); 
see.  also,  Veto  Messages  1917,  p.  9. 

=«  Huston  V  Clarke,  112  111.  314  (1884);  Owners  of  Lands  v  People,  113 
111.  296    (1885);   Sny  Island  Drainage  District  v  Shaw.   252  111.   142    (1911). 

SI  Owners  of  Lands  v  People,   113  111.  296    (1885). 


126  Article  4,  Sections  32,  33 

age  district  with  reference  to  the  appointment  of  its  corporate  authorities, 
was  obtained  when  a  majority  of  the  land  owners  petitioned  for  the  organiza- 
tion of  the  district.  In  Herschbach  v  Kaekaskia  Sanitary  District,"'  and 
Funkhouser  v  Randolph,"'  special  acts  creating  drainage  districts  were  held 
void,  because  no  provision  was  made  for  the  election  or  appointment  of  the 
corporate  authorities  in  a  manner  approved  by  the  people;  and  the  earlier 
cases  were  expressly  distinguished  on  the  ground  that  the  drainage  law  in- 
volved in  those  cases  permitted  the  organization  of  a  drainage  district  only 
on  the  petition  of  a  majority  of  the  land  owners  in  the  proposed  district. 


Assessments  and  benefits.  Under  this  section,  the  General  Assemoiy 
has  the  power  to  authorize  the  levy  of  special  assessments  against  all 
property  in  a  drainage  district  which  is  benefited  thereby.  The  constitu- 
tion does  not  limit  such  assessments  to  assessments  against  lands  only.*^ 
But  the  assessments  must  not  exceed  the  benefits,'^  and  the  owner  of  prop- 
erty assessed  must  be  given  an  opportunity  to  be  heard  on  the  question 
whether  his  property  is  assessed  more  than  it  is  benefited.^*  However, 
benefits  other  than  those  of  an  agricultural  or  sanitary  nature,  may  be  con- 
sidered in  spreading  a  special  assessment.*^ 

A  district  organized  prior  to  1878,  may  not  levy  special  assessments 
to  pay  its  outstanding  obligations.  It  may  levy  such  assessments  for  the 
construction  and  maintenance  of  new  levees,  drains  and  ditches  and  "to 
keep  in  repair  all  drains,  ditches  and  levees  heretofore  constructed  under 
the  laws  of  this  state,"  but  that  is  the  full  extent  of  the  power  conferred.'® 

(See  discussion  article  9,  section  9). 


Section  32.     The  General  Assembly  shall  pass  liberal  Home- 
stead and  Exemption  laws. 


Section  33.  The  General  Assembly  shall  not  appropriate  out 
of  the  State  treasury,  or  expend  on  account  of  the  nev/  capitol 
grounds,  and  construction,  completion,  and  furnishing  of  the  State 
House,  a  sum  exceeding,  in  the  aggregate,  three  and  a  half  millions 
of  dollars,  inclusive  of  all  appropriations  heretofore  made,  without 
first  submitting  the  proposition  for  an  additional  expenditure  to 
the  legal  voters  of  the  State,  at  a  general  election ;  nor  unless  a  ma- 
jority of  all  the  votes  cast  at  such  election  shall  be  for  the  proposed 
additional  expenditure. 


The  phrase  "new  capitol  grounds"  is  not  limited  to  such  grounds  as 
the  state  had  at  the  time  of  the  adoption  of  the  constitution.  It  was  in- 
tended "to  cover  and  include  all  grounds  belonging  to  the  capitol  without 
regard  to  when  they  were  purchased."*^ 

40  265    111.   388    (1914). 

"1287    111.    94    (1919). 

«  Spring-  Creek  Drainage  District   v  E.   J.   &  E.   Rv.   Co.,   249   111.    260    (1911). 

^sWinkleman  v  M.  &  I.  L,.  Drainage  District.  170  111.  37  (1897);  People  v 
Whitesell,    262    111.    387    (1914). 

I'' People  v  Brown,  2,53  111.  578  (1912);  People  v  Schwartz,  284  111.  159   (1918). 

45  Comnnissioners  of  Highway.s  v  Dralnagre  Commissioners,  127  111.  581, 
(1889);    Vandalia   Draina^^e   District   v   Vandalia  'R.   R.    Co.,    247    111.    114    (1910). 

4"Winkleman   v   M.    &    I.    L.    Drainage   District,    170    111.    37    (1897). 

*T  People  V  Stuart.   97   111.   123    (1880). 


Article  4,  Section  34  127 

Section  34.     The  General  Assembly  shall  have  power,  subject 
to  the  conditions  and  limitations  hereinafter  contained,  to  pass  any 
law  (local,  special  or  general)   providing  a  scheme  or  charter  of 
local  municipal  government  for  the  territory  now  or  hereafter  em- 
braced within  the  limits  of  the  city  of  Chicago.    The  law  or  laws  so 
passed  may  provide  for  consolidating  (in  whole  or  in  part)  in  the 
municipal   government  of   the   city   of   Chicago,   the   powers   now 
vested  in  the  city,  board  of  education,  township,  park  and  other  lo- 
cal governments  and  authorities  having  jurisdiction  confined  to  or 
within  said  territory,  or  any  part  thereof,  and  for  the  assumption  by 
the  city  of  Chicago  of  the  debts  and  liabilities  (in  whole  or  in  part) 
of  the  governments  or  corporate  authorities  whose  functions  within 
its  territory  shall  be  vested  in  said  city  of  Chicago,  and  may  author- 
ize said  city,  in  the  event  of  its  becoming  liable  for  the  indebtedness 
of  two  or  more  of  the  existing  municipal  corporations  lying  wholly 
within  said  city  of  Chicago,  to  become  indebted  to  an  amount  (in- 
cluding its  existing  indebtedness  and  the  indebtedness  of  all  muni- 
cipal corporations  lying  wholly  within  the  limits  of  said  city,  and 
said  city's  proportionate  share  of  the  indebtedness  of  said  county 
and  sanitary  district  which  share  shall  be  determined  in  such  man- 
ner as  the  General  Assembly  shall  prescribe)  in  the  aggregate  not 
exceeding  five  per  centum  of  the  full  value  of  the  taxable  property 
within  its  limits,  as  ascertained  by  the  last  assessment  either  for 
State  or  municipal  purposes  previous  to  the  incurring  of  such  in- 
debtedness  (but  no  new  bonded  indebtedness,  other  than  for  re- 
funding purposes,  shall  be  incurred  until  the  proposition  therefor 
shall  be  consented  to  by  a  majority  of  the  legal  voters  of  said  city 
voting  on  the  question  at  any  election,  general,  municipal  or  spe- 
cial) ;  and  may  provide  for  the  assessment  of  property  and  the  levy 
and  collection  of  taxes  within  said  city  for  corporate  purposes  in 
accordance   with   the   principles   of   equality   and   uniformity   pre- 
scribed by  this  Constitution ;  and  may  abolish  all  offices,  the  func- 
tions of  which  shall  be  otherwise  provided  for ;  and  may  provide  for 
the  annexation  of  territory  to  or  disconnection  of  territory  from  said 
city  of  Chicago  by  the  consent  of  a  majority  of  -the  legal  voters 
(voting  on  the  question  at  any  election,  general,  municipal  or  spe- 
cial) of  the  said  city  and  of  a  majority  of  the  voters  of  such  ter- 
ritory, voting  on  the  question  at  any  election,  general,  municipal  or 
special;  and  in  case  the  General  Assembly  shall  create  municipal 
courts  in  the  city  of  Chicago  it  may  abolish  the  offices  of  justices  of 
the  peace,  police  magistrates  and  constables  in  and  for  the  territory 
within  said  city,  and  may  limit  the  jurisdiction  of  justices  of  the 
peace  in  the  territory  of  said  county  of  Cook  outside  of  said  city  to 
that  territory,  and  in  such  case  the  jurisdiction  and  practice  of  said 
municipal  courts  shall  be  such  as  the  General  Assembly  shall  pre- 
scribe; and  the  General  Assembly  may  pass  all  laws  which  it  may 
deemi  requisite  to  effectually  provide  a  complete  system  of  local 
government  in  and  for  the  city  of  Chicago. 


128  Article  4,  Section  34 

No  law  based  upon  this  amendment  to  the  Constitution,  affect- 
ing the  municipal  government  of  the  city  of  Chicago,  shall  take  ef- 
fect until  such  law  shall  be  consented  to  by  a  majority  of  the  legal 
voters  of  said  city  voting  on  the  question  at  any  election,  general, 
municipal  or  special ;  and  no  local  or  special  law  based  upon  this 
amendment  affecting  specially  any  part  of  the  city  of  Chicago  shall 
take  effect  until  consented  to  by  a  majority  of  the  legal  voters  of 
such  part  of  said  city  voting  on  the  question  at  any  election,  gen- 
eral, municipal  or  special.  Nothing  in  this  section  contained  shall 
be  construed  to  repeal,  amend  or  affect  section  four  (4)  of  Article 
XI  of  the  Constitution  of  this  State. 

This  section  was  adopted  as  an  amendment  to  the  constitution  in  1904. 
Under  the  constitution  (article  4,  section  22),  the  General  Assembly  is  for- 
bidden to  pass  special  laws  relating  to  cities.  Chicago,  the  largest  city  in 
the  state,  had  long  felt  the  need  for  special  laws  with  reference  to  its  local 
affairs.  One  purpose  of  this  amendment  was  to  give  the  General  Assembly 
the  power  to  enact  special  laws  with  respect  to  the  local  government  of  that 
city.  It  was  also  deemed  desirable  to  abolish  justices  of  the  peace  in  the 
city  of  Chicago  and  to  limit  the  territorial  jurisdiction  of  the  justices  of  the 
peace  residing  outside  of  the  city  but  within  the  county  of  Cook.  However, 
the  constitution  (article  6,  section  21)  provides  that  the  jurisdiction  of  justices 
of  the  peace  shall  be  uniform.  It  was  impossible  to  limit  the  territorial  juris- 
diction of  justices  of  the  peace  in  Cook  County,  without  also  limiting  the  terri- 
torial jurisdiction  of  justices  of  the  peace  in  other  counties  in^a  similar  man- 
ner.'** In  order  to  give  the  General  Assembly  the  power  to  limit  the  territorial 
jurisdiction  of  justices  of  the  peace  in  Cook  County  only,  it  was  necessary  to 
amend  the  constitution.  To  give  the  General  Assembly  this  power  was  another 
purpose  of  this  amendment.  (See  Constitutional  Conventions  in  Illinois, 
Second  Edition,  pp.  38,  39).  The  legality  of  the  amendment  was  challenged 
on  the  ground  that  it  amended  more  than  one  article  of  the  constitution, 
but  it  was  sustained.  (See  discussion  article  14,  section  2,  subheading, 
"Amendments  to  more  than  one  article"). 

"Since  the  adoption  of  this  amendment,  the  General  Assembly  is  not 
restricted  in  the  passage  of  local  or  special  laws  applicable  alone  to  the 
city  of  Chicago  in  furtherance  of  the  general  purposes  of  the  amendment, 
except  such  restrictions  and  conditions  as  are  contained  in  the  amendment 
itself  .  .  .  There  being  no  limitations  or  restrictions  in  the  constitu- 
tional amendment  itself  as  to  the  form  of  the  ballot  to  be  used  in  voting 
upon  any  special  law  passed  in  pursuance  of  this  amendm-ent,  and  the 
legislature  having  express  power  to  pass  any  law,  local  special  or  general, 
providing  for  a  scheme  or  charter  of  local  municipal  government  for  the 
city  of  Chicago,  there  can  be  no  valid  objection  to  a  provision  incorporated 
in  the  law  to  be  voted  upon,  providing  for  the  form  of  the  ballot  to  be  used 
in  the  election  to  adopt  or  reject  such  law."'^ 

In  1913,  the  Attorney  General  was  called  upon  to  construe  the  provision, 
"no  local  or  special  law  .  .  .  affecting  specially  any  part  of  the  city 
of  Chicago,  shall  take  effect  until  consented  to  by  a  majority  of  the  legal 
voters  of  such  part  of  said  city  voting  on  the  question  .  .  ."A  bill 
passed  by  the  General  Assembly  sought  to  consolidate  the  several  park  dis- 
tricts in  the  city  of  Chicago.  The  parks  were  not  co-extensive  with  the 
limits  of  the  city,  but  the  bill  provided  that  if  it  received  a  majoirty  of  the 
total  number  of  votes  cast  on  the  question  in  the  entire  city,  it  should  be 
declared  adopted.  The  Attorney  General  ruled  that  this  provision  of  the  bill 
was  in  conflict  with  the  constitution,  for  the  reason,  that  under  its  terms, 

"3  People    V    Meech,    101    111.    200    (1882). 

49  Swigart   v   City   of   Chicago,    223    111.   371    (1906). 


Article  4,  Section  34  129 

a  park  district  comprising  only  a  part  of  the  city,  might  be  forced  into  a 
consolidation,  even  though  a  majority  of  the  voters  in  the  park  district 
voted  against  the  adoption  of  the  bill.=" 

This  section  seems  to  have  contemplated  that  all  special  laws  enacted 
under  it  should  be  submitted  to  the  legal  voters  of  the  city  of  Chicago  before 
taking  effect.  However,  it  should  be  noted  that  the  part  of  the  section 
relating  to  a  local  referendum  is  limited  to  laws  "affecting  the  municipal 
government  of  the  city  of  Chicago",  and  that  the  power  to  enact  special 
legislation  may  be  construed  as  broader  than  the  requirement  for  a  local 
popular  vote.  An  act  passed  in  1919  (Laws  1919,  p.  411)  made  certain 
changes  with  respect  to  officers  of  the  municipal  court,  without  providing 
for  a  local  referendum.  The  validity  of  this  law  has  not  been  passed  upon 
by  the  Supreme  Court. 

A  large  number  of  cases  construing  this  section  have  come  up  in  connec- 
tion with  the  act  relating  to  the  municipal  court.  Since  all  of  these  cases  are 
discussed  elsewhere,  there  will  be  no  discussion  concerning  them  at  this 
time.  References  are  given,  however,  to  the  articles  and  sections  in  con- 
nection with  which  these  cases  are  discussed.  (For  discussion  as  to  char- 
acter and  territorial  Jurisdiction  of  the  municipal  court,  see  statement  article 
6,  section  1.  With  reference  to  concurrent  jurisdiction  of  municipal  court 
and  criminal  court  of  Cook  County,  see  discussion  article  6,  section  26.  With 
reference  to  the  power  of  the  General  Assembly  to  fix  the  term  of  office  of 
judges  of  the  municipal  court,  see  discussion  article  6,  section  32.  For 
statement  as  to  power  of  General  Assembly  to  pass  special  laws  relating 
to  practice  and  jurisdiction  of  municipal  court,  see  discussion  article  4, 
section  22,  sub-heading  "Changes  of  venue"  and  article  6,   section  29). 

50  Veto  Message   Senate  Journal  1913,  p.  2290. 


ARTICLE  V— EXECUTIVE  DEPARTMENT 


Section  1.  The  Executive  Department  shall  consist  of  a  Gov- 
ernor, Lieutenant  Governor,  Secretary  of  State,  Auditor  of  Public 
Accounts,  Treasurer,  Superintendent  of  Public  Instruction,  and  At- 
torney General,  who  shall,  each,  with  the  exception  of  the  Treas- 
urer, hold  his  office  for  the  term  of  four  years  from  the  second  Mon- 
day of  January  next  after  his  election,  and  until  his  successor  is 
elected  and  qualified.  They  shall,  except  the  Lieutenant  Governor, 
reside  at  the  seat  of  government  during  their  term  of  office,  and, 
keep  the  public  records,  books  and  papers  there,  and  shall  perform 
such  duties  as  may  be  prescribed  by  law. 


In  general.  It  seems  obvious  that  the  officers  named  in  this  section 
are  constitutional  officers  and  must,  therefore,  be  elected  by  the  electors  pre- 
scribed in  artice  7,  section  1.  Thus  an  act  giving  women  the  right  to  vote 
for  all  officers  to  be  elected  under  the  general  and  special  school  laws  was 
held  invalid  insofar  as  it  purported  to  give  women  the  right  to  vote  for  the 
Superintendent  of  Public  Instruction.^  (See  discussion  article  7,  section  1, 
subheading,  "Woman  suffrage".) 

The  Supreme  Court  has  apparently  reached  the  view  that  a  civil  service 
act  depriving  the  officers  named  in  this  section  of  their  power  to  appoint  sub- 
ordinates does  not  violate  this  section.^  (See  discussion  article  3,  subhead- 
ing, "Independence  of  Departments".) 


Secretary  of  State.  The  Secretary  of  State  has  certain  constitutional 
duties  such  as  the  duty  to  reside  at  the  seat  of  government  and  keep  the 
public  records  there,  and  the  duty  to  keep  and  use  the  great  seal  of  the  state 
of  Illinois.  (See  article  5,  section  22).  Concerning  these  duties  Justice 
Dunn  said  in  People  v.  McCullough:?-  "Tlue  legislature  cannot  absolve  the 
Secretary  of  State  from  the  performance  of  these  duties  or  impose  them 
upon  another.  So  far  as  the  constitution  confers  any  power  upon  him,  he  is 
beyond  the  reach  of  the  legislature.  It  cannot  deprive  him  of  the  custody  of 
the  great  seal  of  the  state  or  authorize  another  officer  to  affix  it  to  any 
document,  and  it  cannot  reouire  the  public  records,  books  and  documents  to 
be  kept  elsewhere  than  at  the  capital.  But  the  Secretary  of  State  is  not  in- 
dependent of  the  legislature  in  the  performance  even  of  these  duties.  He  is 
subject  to  its  control  in  all  things  connected  with  them,  where  the  consti- 
tution has  not  imposed  a  limitation  upon  the  power  of  the  legislature.  What 
are  the  public  records,  books  and  papers  which  are  to  be  kept  at  the  seat  of 
government  must  be  ascertained  by  an  examination  of  the  statutes.  They 
are  only  such  records,  books  and  papers  as  some  statute  names.  While  they 
must  be  kept  at  the  seat  of  government,  the  legislature  may  require  them  to 
be  kept  in  the  state  house  in  offices  provided  for  that  purpose.  While  no 
other  officer  can  be  authorized  to  use  the  great  seal,  the  Secretary  of  State 

iPlummer   v   Yost.    144   111.    68    (1893). 

2  People  V  McCullouRh.  254  111.  9   (1912);  People  v  Brady.  275  111.  261   (1916). 

3  People   V   McCullough,    254    111.    9    (1912). 

131 


132  Article  5,  Sections  2,  3 

can  use  it  only  as  directed  by  law.  The  legislature  may  regulate  the  form  in 
which  the  records  and  accounts  shall  be  kept  and  reports  shall  be  made, 
and,  in  general,  control  whatever  the  constitution  has  not  prescribed." 


Attorney  General.  In  the  case  of  Fergus  v  Russel,*  the  Supreme  Court 
took  the  view  that  the  provision  of  this  section  that  the  Attorney  General 
"shall  perform  such  duties  as  may  be  prescribed  by  law"  conferred  upon  the 
Attorney  General  all  of  the  duties  which  the  English  Attorney  General  had 
at  common  law,  and  since  the  English  Attorney  General  was  the  sole  officer 
authorized  to  represent  the  British  Crown,  the  Attorney  General  of  the  state 
of  Illinois  must  conduct  all  of  the  litigation  and  do  all  of  the  legal  business 
for  the  state.  In  that  case  the  court  said:  "The  Attorney  General  is  the 
chief  law  officer  of  the  state,  and  the  only  officer  empowered  to  represent  the 
people  in  any  suit  or  proceeding  in  which  the  state  is  the  real  party  in  in 
terest,  except  where  the  constitution  or  a  constitutional  statute  may  provide 
otherwise.  With  this  exception,  only,  he  is  the  sole  official  adviser  of  the 
executive  officers  and  of  all  boards,  commissions  and  departments  of  the 
state  government,  and  it  is  his  duty  to  conduct  the  law  business  of  the  state, 
both  in  and  out  of  the  courts.  The  appropriation  to  the  Insurance  Super- 
intendent for  legal  services  and  for  traveling  expenses  of  attorneys  and  court 
costs  in  prosecutions  for  violations  of  insurance  laws  is  unconstitutional  and 
void."     (See  Constitutional  Convention  Bulletin  No.  1,  pp.  13,  16.) 


Auditor  of  Public  Accounts.  It  has  been  held  that  the  Auditor  of 
Public  Accounts  is  vested  with  certain  powers  of  which  the  General  As- 
sembly may  not  deprive  him.  In  the  case  of  People  v.  Brady'  the  court  said: 
"It  is  not  within  the  power  of  the  General  Assembly  to  deprive  the  Auditor 
of  Public  Accounts  of  the  power  conferred  upon  him  by  the  constitution  to 
audit  claims  and  charges  against  the  state  created  in  pursuance  of  an 
appropriation  made  by  law."  But  it  has  been  held  that  it  is  within  the 
power  of  the  General  Assembly  to  require  that  claims  or  charges  against  the 
state  be  approved  by  some  official  before  they  are  presented  to  the  Auditor.' 
(See  discussion  article  4,  section  17,  subheading,  "Auditor's  Warrant".) 


Section  2.  The  Treasurer  shall  hold  his  office  for  the  term  of 
two  years,  and  until  his  successor  is  elected  and  qualified ;  and  shall 
be  ineligible  to  said  office  for  two  years  next  after  the  end  of  the 
term  for  which  he  was  elected.  He  may  be  required  by  the  Gov- 
ernor to  give  reasonable  additional  security,  and  in  default  of  so  do- 
ing his  office  shall  be  deemed  vacant. 


Section  3.  An  election  for  Governor,  Lieutenant  Governor, 
Secretary  of  State,  Auditor  of  Public  Accounts,  and  Attorney  Gen- 
eral, shall  be  held  on  the  Tuesday  next  after  the  first  Monday  of 
November,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-two,  and  every  four  years  thereafter ;  for  Superintendent  of 


"270   111.    .S04    (191.'^).      And   see   Dahnke   v   People.    168    HI.    102    (1897). 

'■'277    Til.    124    (1917). 

"People   V   Lowden,    285    111.    618    (1918). 


Article  5,  Sections  4,  5  133 

Public  Instruction  on  the  Tuesday  next  after  the  first  Monday  of 
November,  in  the  year  one  thousand  eight  hundred  and  seventy, 
and  every  four  years  thereafter;  and  for  Treasurer  on  the  day  last 
above  mentioned,  and  every  two  years  thereafter,  at  such  places  and 
in  such  manner  as  may  be  prescribed  by  law. 


Section  4.  The  returns  of  every  election  for  the  above  named 
officers  shall  be  sealed  up  and  transmitted,  by  the  returning  officers, 
to  the  Secretary  of  State,  directed  to  the  "The  Speaker  of  the  House 
of  Representatives,"  who  shall,  immediately  after  the  organization 
of  the  House,  and  before  proceeding  to  other  business,  open  and 
publish  the  same  in  the  presence  of  a  majority  of  each  House  of  the 
General  Assembly,  who  shall,  for  that  purpose,  assemble  in  the  hall 
of  the  House  of  Representatives.  The  person  having  the  highest 
number  of  votes  for  either  of  said  offices  shall  be  declared  duly 
elected ;  but  if  two  or  more  have  an  equal,  and  the  highest  number 
of  votes,  the  General  Assembly  shall,  by  joint  ballot,  choose  one  of 
such  persons  for  said  office.  Contested  elections  for  all  of  said 
offices  shall  be  det:ermined  by  both  houses  of  the  General  Assembly, 
by  joint  ballot,  in  such  manner  as  may  be  prescribed  by  law. 


The  Attorney  General  has  ruled  that  the  requirements  of  this  section  as 
to  canvass  of  the  votes  must  be  complied  with  before  the  officers  are  entitled 
to  assume  office.  Thus,  where  both  houses  of  the  legislature  were  dead- 
locked in  organizing  and  for  that  reason  could  not  hold  the  joint  meeting 
required  by  this  pection,  the  inauguration  of  the  state  officers  was  necessarily 
postponed  until  this  joint  meeting  had  been  held  and  the  votes  canvassed, 
although  it  will  be  noticed  that  section  1  of  this  article  fixes  a  definite  date 
for  the  inauguration/  The  Attorney  General  has  also  held  that,  while  this 
section  precludes  the  House  of  Representatives  from  engaging  in  other  busi- 
ness prior  to  the  joint  meeting  required  by  this  section,  it  does  not  prevent 
the  Senate  from  transacting  other  business.^ 


Section  5.  No  person  shall  be  eligible  to  the  office  of  Governor, 
or  Lieutenant  Governor,  who  shall  not  have  attained  the  age  of 
thirty  years,  and  been,  for  five  years  next  preceding  his  election,  a 
citizen  of  the  United  States  and  of  this  State.  Neither  the  Gov- 
ernor, Lieutenant  Governor,  Auditor  of  Public  Accounts,  Secretary 
of  State,  Superintendent  of  Public  Instruction  nor  Attorney  General 
shall  be  eligible  to  any  other  office  during  the  period  for  which  he 
shall  have  been  elected. 


The  last  sentence  of  this  section  does  not  prevent  the  General  Assembly 
from  imposing  ex  officio  duties  upon  the  officers  named.     Ttius  the  Supreme 

^Report  Attorney  General  1912.   p.   1237. 
«  Report  Attorney  General  1912,  p.  1240, 


134  Article  5,  Sections  6,  7 

Court  has  held  that  a  statute  making  the  Superintendent  of  Public  Instruc- 
tion ex  officio  trustee  of  a  state  normal  school  does  not  violate  this  section, 
since  it  merely  prescribes  additional  duties  for  that  officer  and  does  not  re- 
quire him  to  hold  any  other  office  than  that  of  Superintendent  of  Public 
Instruction.® 


Section  6.     The  supreme  executive  power  shall  be  vested  in  the 
Governor,  who  shall  take  care  that  the  laws  be  faithfully  executed. 


In  general.  Article  3  provides  that  the  powers  of  the  government  shall 
be  divided  into  three  distinct  departments, — the  legislative,  executive,  and 
judicial,  and  no  person,  or  collection  of  persons,  being  one  of  these  depart- 
ments, shall  exercise  any  power  properly  belonging  to  another,  except  as 
otherwise  provided  in  the  constitution.  Under  this  provision,  it  is  held  that 
the  investiture  of  the  Governor  with  supreme  executive  power  makes  the  chief 
executive  independent  of  the  judiciary  and  the  courts  can  not,  therefore, 
control  his  actions."  (See  discussion  article  3,  subheading,  "Independence 
of  departments".) 


Governor's  power  to  execute  laws.  In  the  early  case  of  Field  v  People", 
the  Supreme  Court,  in  construing  a  similar  section  of  the  constitution  of 
1818,  laid  down  the  far  reaching  principle  that  the  constitution  is  a  limita- 
tion upon  the  power  of  the  General  Assembly,  but  a  grant  of  power  to  the 
executive  and  judicial  branches  of  the  government.  The  court  held  that  it 
followed  from  this  principle  that  the  Governor  has  no  implied  powers  except 
such  as  are  necessarily  incidental  to  the  execution  of  his  express  powers. 
And  since  no  specific  power  is  granted  by  this  section,  none  can  be  implied. 
The  Attorney  General,  on  at  least  three  occasions,  has  advised  the  Governor 
that  the  chief  executive  may  exercise  no  power  by  virtue  of  this  clause. 
Thus  the  Attorney  General  has  said  that  the  Governor  has  no  power  by 
virtue  of  this  section  to  enforce  the  Sunday  closing  law  or  dram  shop  act,^=^ 
nor  has  the  Governor  power  to  aid  the  courts  in  the  execution  of  their  pro- 
cess, except  by  virtue  of  his  power  to  use  the  militia  in  case  the  courts 
are  obstructed  in  enforcing  their  process.'^ 


Section  7.  The  Governor  shall,  at  the  commencement  of  each 
session,  and  at  the  close  of  his  term  of  office,  give  to  the  Genera! 
Assembly  information,  by  message,  of  the  condition  of  the  State, 
and  shall  recommend  such  measures  as  he  shall  deem  expedient.  He 
shall  account  to  the  General  Assembly,  and  accompany  his  message 
with  a  statement  of  all  moneys  received  and  paid  out  by  him  from 
any  funds  subject  to  his  order,  with  vouchers,  and,  at  the  com- 
mencement of  each  regular  session  present  estimates  of  the  amount 
of  money  required  to  be  raised  by  taxation  for  all  purposes. 


» People   v   IriRlis,    161    111.  256    (1896). 

'"People   V   Dunne,    258   111.  441    (1913). 
"3    111.    79    (1839). 

"Report  Attorney  General  1906,  p.   54:   1915.  p.   78. 

13  Report  Attorney  General  1918,  p.  805, 


Article  5,  Sections  8,  9  135 

Section  8.  The  Governor  may,  on  extraordinary  occasions, 
convene  the  General  Assembly,  by  proclamation,  stating  therein  the 
purpose  for  which  they  are  convened;  and  the  General  Assembly 
shall  enter  upon  no  business  except  that  for  which  they  were  called 
together. 


The  Attorney  General  has  said  that  the  Governor  might  issue  an  ad- 
ditional proclamation,  during  a  special  session  of  the  General  Assembly, 
naming  additional  subjects  for  legislative  consideration.  But  such  a  mes- 
sage should  be  in  the  form  of  an  independent  proclamation,  and  not  an 
amendment  to  the  original  proclamation.^^ 

It  is  a  direct  violation  of  this  section  of  the  constitution  for  the  General 
Assembly,  at  a  special  session,  to  pass  an  act  upon  a  subject  matter  not 
mentioned  in  the  governor's  proclamation  convening  the  special  session.^'' 
However,  it  was  the  opinion  of  the  Attorney  General  that  an  amendment 
to  the  federal  constitution  might  be  ratified  at  a  special  session  of  the 
General  Assembly,  despite  the  fact  that  this  purpose  was  not  mentioned  in 
the  Governor's  proclamation.  This  opinion  was  based  upon  the  view  that 
the  provision  of  this  section  that  the  "General  Assembly  shall  enter  upon 
no  business  except  that  for  which  they  were  called  together"  merely  pro- 
hibits that  body  from  performing  legislative  acts  other  than  those  mentioned 
in  the  proclamation  convening  the  General  Assembly.  In  the  opinion  of  the 
Attorney  General  the  ratification  of  the  amendment  to  the  federal  constitu- 
tion was  not  a  legislative  act.  But  the  Attorney  General  in  the  same  opinion, 
suggests  the  advisability  of  avoiding  all  doubt  by  permitting  a  regular  ses- 
sion of  the  General  Assembly  to  ratify  such  an  amendment.^** 


Section  9.  In  case  of  a  disagreement  between  the  two  houses 
with  respect  to  the  time  of  adjournment,  the  Governor  may,  on  the 
same  being  certified  to  him  by  the  house  first  moving  the  adjourn- 
ment, adjourn  the  General  Assembly  to  such  time  as  he  thinks 
proper,  not  beyond  the  first  day  of  the  next  regular  session. 


The  principal  difficulty  arising  under  this  section  is  the  determination 
of  when  a  disagreement  exists  between  the  two  houses,  with  respect  to  the 
time  of  adjournment.  Mr.  Elliott  Anthony,  in  introducing  this  section  in 
the  constitutional  convention  of  1869-70  said:  "The  term  'disagreement'  is 
a  technical  term  and  consists  of  five  steps;  (1)  The  originating  house  non- 
concurs; (2)  the  amending  house  insists;  (3)  the  originating  house  in- 
sists; (4)  the  amending  house  adheres;  (5)  the  originating  house  adheres". 
(Debates  p.  748). 

In  this  connection  the  case  of  People  v  Hatch*'  is  interesting.  That  case 
arose  under  the  constitution  of  1848,  which  contained  a  provision  similar 
to  this,  except  that  the  certificate  of  the  house  first  moving  the  adjourn- 
ment was  not  a  prerequisite  to  the  Governor's  power  to  act.  The  facts  of 
that  case  were  as  follows:  On  the  6th  day  of  June,  1863,  the  Senate  adopted 
a  resolution  for  final  adjournment  at  6  o'clock  in  the  afternoon  of  that 
day.     The   House   amended   this   resolution   by   inserting   the    22nd    day   of 


"Report  Attorney   General   1912,   pp.    964.    966. 

^•''•Veto    Messages    1911,    pp.    31,    33. 

i« 'Report  Attorney  General   1912,   p.   83. 

"33  111.  9   (1863). 


136  Article  5,  Section  10 

June  and,  when  the  senate  refused  to  concur  in  this  amendment,  and, 
before  the  House  had  taken  any  further  action,  Governor  Yates,  by  procla- 
mation, declared  the  legislature  adjourned.  When  this  matter  was  brought 
before  the  Supreme  Court,  the  court  scrupulously  refrained  from  expressing 
an  opinion  as  to  the  legality  of  the  Governor's  action.  However,  Justice 
Breese,  in  a  separate  opinion,  expressed  the  view  that  it  was  for  the 
General  Assembly  to  determine  whether  the  Governor  had  cause  to  take 
this  action  but  that  the  subsequent  actual  departure  of  the  General  As- 
sembly was  an  acquiescence  in  the  Governor's  action.  It  will  be  observed 
that  all  of  the  steps  mentioned  in  Mr.  Anthony's  definition  of  a  disagreement 
did  not  occur  in  this  case. 

It  seems  to  have  been  the  consensus  of  opinion,  in  the  convention  of 
1869-70  that  some  alteration  of  the  section,  as  it  stood  in  the  constitution  of 
1848,  was  desirable  to  prevent  a  recurrence  of  the  prorogation  of  1863. 
(Debates  p.  776-779.)  There  was  some  disagreement  as  to  how  this  could 
best  be  accomplished.  The  expedient  of  requiring  the  certificate  of  the 
House  first  moving  the  adjournment  that  the  disagreement  actually  existed 
was  finally  adopted  as  the  most  effective  safeguard  against  arbitrary  action 
by  the  Governor. 

In  1911,  the  Attorney  General  rendered  an  opinion  that  when  the 
Governor  had  received  the  certificate  of  disagreement  from  the  house  first 
moving  the  adjournment,  the  Governor  was  the  sole  judge  of  whether  or  not 
a  disagreement  actually  existed  and  his  discretion  was  not  reviewable  by 
the  courts.  The  Attorney  General  also  took  the  view  that  if  the 
Governor  should  adjourn  the  General  Assembly  to  a  specified  date,  he 
might,  before  that  date,  exercise  his  constitutional  power  to  call  a  special 
session,  if  an  emergency  requiring  such  a  session  should  arise.'" 


Section  10.  The  Governor  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  Senate,  (a  majority  of  all  the  Senators 
elected  concurring,  by  yeas  and  nays),  appoint  all  officers  whose 
offices  are  established  by  this  Constitution,  or  which  may  be  created 
by  law,  and  whose  appointment  or  election  is  not  otherwise  pro- 
vided for;  and  no  such  officer  shall  be  appointed  or  elected  by  the 
General  Assembly. 


While  this  section  deprives  the  General  Assembly  of  the  power  to  ap- 
point to  office  it  does  not  mean  that  all  state  officers  whose  offices  are 
created  by  the  constitution  or  by  law,  must  be  appointed  by  the  governor.'® 
The  General  Assembly  may  create  oflrices  and  provide  that  they  shall  be 
filled  by  the  appointment  of  some  officer  other  than  by  the  Governor.  Thus, 
the  General  Assembly  may  authorize  the  courts  to  appoint  boards  of  election 
commissioners,  election  judges,  county  mine  examining  boards  and  park 
commissioners.-"  But  it  has  been  held  that  the  power  to  appoint  and  re- 
move city  fire  marshalls  can  not  be  vested  in  the  courts,  since  this  power 
is  an  executive  power,  which  the  separation  of  the  departments  of  the 
government  precludes  the  courts  from  exercising.^'  •  Likewise  it  has  been 
held  that  the  power  to  appoint  probation  officers  is  a  judicial  function  and 


i«  Report   Attorney    General    1912,    p.    73. 

J»  People  v  Evans,  247  111.  547    (1910),   but  see  Veto  Message,   No.   16. 

2«  People  V  Board  of  Supervisors,  223  111.  187  (1906);  People  v  Hoffman, 
116  111.  587  (1886);  People  v  Evans,  247  111.  547  (1910);  People  v  Morgan,  90  111. 
558   (1878);  see  People  v  Kipley,  171  111.   44    (1898). 

-■^City   of  Aurora  v   Schoeberlein,    230   111.   496    (1907). 


Article  5,  Section  11  137 

can  not  be  vested  otherwise  than  in  the  courts-^*-  And,  while  the  General 
Assembly  may  confer  the  power  of  appointment  upon  other  officers  than 
the  Governor,  it  cannot  give  to  a  private  individual,  association  or  corpora- 
tion the  power  to  make  appointments  to  office,  for  this  would  be,  in  effect, 
a  grant  of  a  special  franchise  to  such  private  individual,  association  or 
corporation.-^*  (See  discussion,  article  4,  section  22,  sub-heading,  "Special 
privileges  and  immunities;"  article  3,  sub-heading,  "Appointment  of  offi- 
cers;"  article   9,  section   9,   sub-heading,   "Corporate   authorities.") 

It  must  be  remembered,  however,  that  not  every  position  is  an  office 
within  the  meaning  of  this  section.  In  the  case  of  Bunn  v  People,-^  which 
was  decided  prior  to  the  adoption  of  the  constitution  of  1870,  it  was  held 
that  a  similar  provision  in  the  constitution  of  1848  did  not  prevent  the 
General  Assembly  from  appointing  the  commissioners  who  were  to  be 
charged  with  the  duty  of  supervising  the  construction  of  the  new  state  house. 
The  basis  of  this  decision  was  that  the  commissioners  were  not  officers 
within  the  meaning  of  the  constitutional  provision,  but  were  mere  agents  or 
employees,  for  a  single  and  special  purpose,  whose  powers  and  duties  ceased 
upon  the  completion  of  their  task.  In  this  connection,  it  may  be  noted 
that  section  24  of  article  5  provides  that  an  office  is  a  public  position, 
created  by  the  constitution  or  law,  continuing  during  the  pleasure  of  the 
appointing  power,  or  for  a  fixed  time,  with  a  successor  elected  or  appointed. 

And  it  has  been  held  that  this  provision  of  the  constitution  is  not 
violated  merely  because  the  General  Assembly  imposes  ex  officio  duties  upon 
an  existing  officer.  Thus,  the  General  Assembly  may  provide  that  the 
highway  commissioners  of  a  township  shall  be  ex  officio  drainage  commis- 
sioners of  that  township.^^  The  mere  imposition  of  ex  officio  duties  does  not, 
in  the  opinion  of  the  Supreme  Court,  constitute  the  creation  of  a  new  office. 


Section  11.  In  case  of  a  vacancy,  during  the  recess  of  the 
Senate,  in  any  office  which  is  not  elective,  the  Governor  shall  make 
a  temporary  appointment  until  the  next  meeting  of  the  Senate, 
when  he  shall  nominate  some  person  to  fill  such  office;  and  any? 
person  so  nominated,  who  is  confirmed  by  the  Senate  (a  majority 
of  all  the  Senators  elected  concurring  by  yeas  and  nays),  shall  hold 
his  office  during  the  remainder  of  the  term,  and  until  his  successor 
shall  be  appointed  and  qualified.  No  person,  after  being  rejected  by 
the  Senate,  shall  be  attain  nominated  for  the  same  office  at  the  same 
session,  unless  at  the  request  of  the  Senate,  or  be  appointed  to  the 
same  office  during  the  recess  of  the  General  Assembly. 


What  is  a  "vacancy"  within  the  meaning  of  this  section?  If  an  officer 
dies,  or  resigns,  or  is  removed  it  is  clear  that  his  office  thereby  becomes 
vacant.  But  does  a  vacancy  exist  when  there  is  an  office  which  has  never 
been  filled?  The  only  case  bearing  upon  this  question  is  the  case  of 
People  V  Porquer^^  arising  under  the  constitution  of  1818.  Article  3,  section 
8  of  the  constitution  of  1818  reads  as  follows:  "When  any  officer,  the  right 
of  whose  appointment  is  by  this  constitution,  vested  in  the  General  As- 
sembly, or  in  the  Governor  and  senate  shall,  during  the  recess,  die  or  his 


23  Witter    V    Cook    County    Commissioners,    256    111.    616     (1912). 
-•'Lasher   v   People.    183    111.    226    (1899). 
2*45   111.   397    (1867). 

25  Kilgour  V  Drainage  Commissioners,   111  111,   342    (1884);   Owners  of  Lands 
V    People.    113    111.    296    (1885). 
2«1   111.   104    (1825). 


Ki8  Article  5,  Section  12 

office  by  any  means  become  vacant,  the  Governor  shall  have  power  to  fill 
such  vacancy  by  granting  a  commission  which  shall  expire  at  the  end  of  the 
next  session  of  the  General  Assembly."  Claiming  to  act  under  this  section, 
the  acting  Governor,  in  1825,  during  a  recess  of  the  senate,  appointed  Wil- 
liam Ewing,  Paymaster  General  in  the  militia.  This  office  had  been  created 
by  statute  in  1821  but  the  position  had  never  been  filled.  The  Supreme  Court 
held  that  this  appointment  was  not  justified  under  the  constitution,  since 
the  vacancy  must  arise  during  the  recess  of  the  senate  in  order  to  give  the 
Governor  the  power  to  make  such  an  appointment.  Just  how  far  this 
decision  is  applicable  as  a  precedent  in  construing  the  present  constitution 
is  a  doubtful  matter,  in  view  of  the  dilTerences  between  the  language  of 
the  constitution  of  1818  and  that  of  1870. 

One  difficulty  involved  in  construing  this  section  of  the  constitution 
is  illustrated  by  the  following  hypothetical  case:  Suppose  the  General  As- 
sembly passed  an  act  on  June  25,  creating  an  office  to  be  filled  by  appoint- 
ment of  the  Governor  with  the  consent  of  the  senate.  Suppose,  then,  the 
General  Assembly  adjourned  sme  die  on  June  26,  and  the  act  was  approved 
by  the  Governor  on  June  27,  so  that  it  took  effect  on  July  1.  Would  the 
Governor,  have  the  right  to  assume  that  there  was  then  a  vacancy  arising 
during  the  recess  of  the  senate  so  that  he  might  make  a  temporary  appoint- 
ment under  this  section  of  the  constitution?  It  is  common  in  the  drafting 
of  bills  to  make  express  provision  regarding  this  matter.  For  example 
the  Civil  Administrative  Code  (Hurds  Revised  Statutes  1917,  Chap.  24i^. 
sec.  12)  provides  that  "If  the  senate  is  not  in  session  at  the  time  this  act 
takes  effect,  the  Governor  shall  make  a  temporary  appointment  as  in  case 
of  a  vacancy". 

The  Attorney  General  has  held  that  "an  office  does  not  become  vacant 
on  the  expiration  of  the  fixed  term  of  the  incumbent  of  the  office  wliere 
under  the  law  he  holds  until  his  successor  is  elected  or  appointed  and 
qualified."  Thus,  where  the  term  of  a  public  administrator  expired  during 
a  recess  of  the  senate  the  Governor  had  no  power  immediately  to  appoint 
his  successor,  since  the  incumbent  holds  office  until  his  successor  is  ap- 
pointed and  qualified.-' 

This  section  applies  to  offices  which  are  not  elective,  but  it  may  be  noted 
that  section  20  of  article  5,  provides  for  appointment  in  several  cases  to  fill" 
vacancies  in  elective  offices. 


Section  12.  The  Governor  shall  have  power  to  remove  any 
officer  whom  he  may  appoint,  in  case  of  incompetency,  neglect  of 
duty,  or  malfeasance  in  office ;  and  he  may  declare  his  office  vacant, 
and  fill  the  same  as  is  herein  provided  in  other  cases  of  vacancy. 


In  general.  The  constitution  of  1818  contained  no  sucli  provision  as 
this,  and  it  was  held  by  the  Supreme  Court  in  the  early  case  of  P''ield  v. 
People-^  that  the  Governor  had  no  power  of  removal  as  an  incident  to  his 
power  of  appointment.  This  section  was  inserted  in  the  constitution  of 
1870  to  insure  the  nullification  of  that  decision.-^     (Debates,  p.  748). 


Power  of  Governor.     The  power  of  the  Governor  to  remove  an  officer 
under  this  section,  for  the  causes  specified,  is  absolute.'"'     He  is  not  limited 


2'' Report  Attorney  General   1910,   p.   172;   see  Report  Attorney  General   1900, 
p.    238. 

2«  3  111.  79   (1839). 

2«  Wilcox  V   People,    90    111.   186    (1878). 

3«  Wilcox  v   People,    90   111.   186    (1878). 


Article  5,  Section  13  139 

to  any  particular  mode  of  removal;  he  may  remove  an  officer  without  notice 
or  hearing  and  his  discretion  in  such  a  removal  is  not  reviewable  by  the 
courts."*^ 

In  the  case  of  Wilcox  v  People*-  it  was  contended  that  the  Governor's 
power  of  removal  under  this  section  was  limited  to  officers  whom  he  had 
appointed  with  the  consent  of  the  senate,  but  the  court  held  that  the  Gov- 
ernor may  remove  any  officer  whom  he  appoints.  However,  the  power  of 
removal  is  limited  to  officers  appointed  by  the  Governor  and  has  no  applica- 
tion to  elective  officers,  unless  the  General  Assembly  shall,  by  a  constitu- 
tional statute,  give  the  Governor  the  power  to  remove  such  elective  officers. 
Thus,  while  the  Governor  may  remove  a  notary  public  for  incompetence,'"  he 
may  not  under  this  section  of  the  constitution,  remove  a  justice  of  the 
peace  or  a  state's  attorney  since  the  latter  are  elective  officers."**  Indeed,  it 
seems  that  a  statute,  giving  the  Governor  power  to  remove  a  justice  of  the 
peace  or  a  state's  attorney  would  be  unconstitutional,  since  section  30  of 
article  6  appears  to  specify  the  only  method  by  which  these  officers  may  be 
removed.  (See  article  6,  section  30).  But,  as  previously  noted,  the  section 
now  under  consideration  does  not  preclude  the  General  Assembly  from  vest- 
ing the  Governor  with  power  to  remove  elective  officers.  A  statute  giving 
the  Governor  power  to  remove  a  sheriff  who  permits  a  prisoner  to  be  taken 
from  him  by  the  action  of  a  mob,  is  constitutional.^' 


Section  13.  The  Governor  shall  have  power  to  grant  reprieves, 
commutations  and  pardons,  after  conviction,  for  all  offenses,  subject 
to  such  regulations  as  may  be  provided  by  law  relative  to  the  man- 
ner of  applying  therefor. 


In  general.  This  provision  vests  in  the  Governor  the  exclusive  power 
to  grant  reprieves,  commutations  and  pardons  and  a  statute  granting  this 
power  to  another  is  invalid.  Thus  the  Supreme  Court  has  held  that  an  act 
allowing  a  judge,  who  has  committed  a  prisoner  to  the  House  of  Correction, 
to  vacate  the  order  of  commitment,  thereby  discharging  the  prisoner,  is  in- 
valid as  an  infringement  upon  the  Governor's  pardoning  power.''"  Similarly, 
where  a  prisoner  entered  a  plea  of  guilty,  but  no  judgment  was  entered  upon 
this  plea  until  three  years  later,  it  was  held  that  this  indefinite  suspension  of 
the  punishment  amounted  to  a  reprieve  which  it  was  beyond  the  power  of 
the  court  to  grant.*' 

The  Governor's  pardoning  power  extends  to  all  offenses.  An  offense  is 
defined  as  a  "transgression  of  law"  and  it  follows  that  the  pardoning  power 
applies  to  misdemeanors  as  well  as  felonies.*^ 


Convictions.  But  it  will  be  noticed  that  the  Governor  has  power  to 
pardon  only  after  conviction.  Some  doubt  exists  as  to  what  amounts  to  a 
conviction.  The  Supreme  Court,  under  the  constitution  of  1848,  held  that  a 
sentence  of  the  court,  and  not  a  mere  finding  of  guilt  by  a  jury,  constituted 
a  conviction."^     But  that  decision  rested  upon  the  provision  of  the  constitu- 


«i  Wilcox   v  People,    90   111.    186    (1878). 

3-!  90   111.   186    (1878). 

^'='  Report   Attorney    General    1914,    p.    164. 

"'Report    Attorney    General    1914,    p.    161;    1915,    p.    92. 

'-People    V   Nellis,    249    111.    12,    (1911). 
.3'!  People   V   I.aBuy.    285   111.    141    (1918);    see.   also,   Report  Attorney   General 
1915.   p.   466;    1908,   p.   56. 

37  People  V  Allen,  155  111.  61  (1895);  see  'Report  Attorney  General  1910,  p.  299. 

«'*  Report   Attorney   Genez'al   1913.   p.    739;    see   People   v   LaBuy,   285    111.    141 
(1918). 

«»Faunce   v    People,    51    111.    311    (1869). 


140  Article  5,  Section  14 

tlon  of  1848  requiring  the  Governor  to  report  to  the  General  Assembly  the 
pardons  granted,  reporting  among  other  things  the  sentence.  On  the  other 
hand  the  Attorney  General  has  taken  the  view  that  a  plea  of  guilty  or  a  find- 
ing of  guilt  by  a  jury  constitutes  a  conviction  under  the  present  constitution. 
Thus,  it  was  the  opinion  of  the  Attorney  General  that  the  present  probation 
system  (act  of  June  19,  1911,)  violates  this  section  of  the  constitution,  since 
it  gives  a  court  power  to  suspend  sentence  after  a  plea  of  guilty  or  a  finding 
of  guilt  by  a  jury,  thereby  infringing  the  Governor's  pardoning  power.^'' 


Parole  law.  The  Supreme  Court  has  held  that  the  parole  law  pro- 
viding for  the  establishment  of  a  board  of  pardons  does  not  encroach  upon 
the  province  of  the  Governor  since  the  board  of  pardons  has  power  only  to 
investigate,  and  the  final  discharge  or  commutation  must  be  made  by  the 
Governor."  Indeed,  the  Attorney  General  has  said  that,  so  far  from  being  in 
conflict  with  this  section  of  the  constitution,  the  parole  law  was  passed  in 
pursuance  of  the  constitutional  provision  that  the  Governor  may  grant 
pardons  "subject  to  such  regulations  as  may  be  provided  by  law  relative  to 
the  manner  of  applying  therefor."^- 


Reprieves,  commutations  and  pardons.  The  Attorney  General  has 
stated  that,  under  a  grant  of  the  pardoning  pov/er  in  this  form  the  Governor 
may  grant  any  fcrm  of  pardon  known  to  the  common  law.  It  may  be  full 
and  absolute  or  partial  and  conditional.  If  the  pardon  be  full  and  absolute 
it  blots  out  entirely  the  judgment  of  conviction  and  the  offense.  But  a  con- 
ditional pardon  or  a  commutation  does  not  blot  out  the  judgment  of  convic 
tion.  It  operates  merely  on  the  punirhment.  So  while  the  Governor  may 
shorten  a  sentence,  he  has  no  power  in  the  opinion  of  the  Attorney  General, 
to  change  a  judgment  of  conviction  of  murder  to  one  of  manslaughter  so  a.4 
to  make  the  parole  law  applicable.'' 

And  it  has  been  held  that  a  pardon  can  not  remit  the  court  costs,  sinco 
the  right  to  such  costs  is  vested  in  those  who  are  to  receive  them,^*  nor  may 
a  pardon  remit  an  informer's  right  to  a  portion  of  the  fine  where  a  part  of 
the  fine  is  given,  by  statute,  to  an  informer.'-' 


Section  14.  The  Governor  shall  be  commander-in-chief  of  the 
military  and  naval  forces  of  the  State  (except  when  they  shall  be 
called  into  the  service  of  the  United  States)  ;  and  may  call  out  the 
same  to  execute  the  laws,  suppress  insurrection,  ard  repel  invasion. 


In  the  case  of  City  of  Chicago  v  Chicago  Ball  Club*'  the  court  held  that 
this  section  prevents  the  General  Assembly  from  giving  to  cities,  or  their 
governing  authorities,  any  control  whatever  over  the  state  militia. 

(For  other  provisions  relating  to  militia,  see  article  12.) 


'«  Report  /tto-nov  Gpneml  1912,  p.  109;  see  People  v  A\]  m,  155  111.  61   (1895), 

"1  People   V    Joyce.    246    111.    124    (1910). 

^3  Report   Attorney    General    1914,    p.    440. 

"»  Report   Attorney    General    1912,    p.    1134. 

^Holliday    v    People.    10    111.    215    (1S4S). 

«Meul   V  People,    198   111.   258    (1902). 

"«  196   111.    54    (1902). 


Article  5,  Sections  15,  16  141 

Section  15.     The  Governor,  and  all  civil  officers  of  the  State, 
shall  be  liable  to  impeachment  for  any  misdemeanor  in  office. 


The  Supreme  Court  has  said  that  the  term  "all  civil  officers  of  the 
state"  as  used  in  this  section  does  not  include  those  officers  who  are  men- 
tioned as  county  officers  in  article  10,  section  8,  viz, — the  county  judge, 
county  clerk,  sheriff,  treasurer,  coroner,  clerk  of  the  circuit  court  and 
recorder  of  deeds.^^ 

(For  other  provisions  of  the  constitution  relating  to  impeachment  or 
removal  of  officers,  see  article  6,  section  30;  article  4,  section  24;  article 
5,  section  12) 


Section  16.  Every  bill  passed  by  the  General  Assembly  shall, 
before  it  becomes  a  law,  be  presented  to  the  Governor.  If  he  ap- 
prove, he  shall  sign  it,  and  thereupon  it  shall  become  a  law;  but  if 
he  do  not  approve,  he  shall  return  it  with  his  objections,  to  the 
House  in  which  it  shall  have  originated,  which  house  shall  enter  the 
objections  at  large  upon  its  journal  and  proceed  to  reconsider  the 
bill.  If  then  two-thirds  of  the  members  elected  agree  to  pass  the 
same,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered;  and  if  approved 
by  two-thirds  of  the  members  elected  to  that  house,  it  shall  become 
a  law  notwithstanding  the  objections  of  the  Governor;  but  in  all 
such  cases  the  vote  of  each  house  shall  be  determined  by  yeas  and 
nays  to  be  entered  upon  the  journal. 

Bills  making  appropriations  of  money  out  of  the  Treasury  shall 
specify  the  objects  and  purposes  for  which  the  same  are  made,  and 
appropriate  to  them  respectively  their  several  amounts  in  distinct 
items  and  sections,  and  if  the  Governor  shall  not  approve  any  one 
or  more  of  the  items  or  sections  contained  in  any  bill,  but  shall  ap- 
prove the  residue  thereof,  it  shall  become  a  law  as  to  the  residue  in 
like  manner  as  if  he  had  signed  it.  The  Governor  shall  then  return 
the  bill,  with  his  objections  to  the  items  or  sections  of  the  same  not 
approved  by  him,  to  the  house  in  which  the  bill  shall  have  origin- 
ated, which  house  shall  enter  the  objections  at  large  upon  its  jour- 
nal, and  proceed  to  reconsider  so  much  of  said  bill  as  is  not  ap- 
proved by  the  Governor.  The  same  proceedings  shall  be  had  in 
both  houses  in  reconsidering  the  same  as  is  hereinbefore  provided 
in  case  of  an  entire  bill  returned  by  the  Governor  with  his  objec- 
tions; and  if  any  item  or  section  of  said  bill  not  approved  by  the 
Governor  shall  be  passed  by  two-thirds  of  the  members  elected  to 
each  of  the  two  houses  of  the  General  Assembly,  it  shall  become 
part  of  said  law  notwithstanding  the  objections  of  the  Governor. 
Any  bill  which  shall  not  be  returned  by  the  Governor  within  ten 
days  (Sundays  excepted)  after  it  shall  have  been  presented  to  him 

"7  Donahue  v  County  of  Will.   100   111.  94    (1881). 


142  Article  5,  Section  16 

shall  become  a  law  in  like  manner  as  if  he  had  signed  it,  unless  the 
General  Assembly  shall,  by  their  adjournment  prevent  its  return,  in 
which  case  it  shall  be  filed  with  his  objections,  in  the  office  of  the 
Secretary  of  State,  within  ten  days  after  such  adjournment,  or  be- 
come a  law/' 


In  general.  The  Governor  is  under  no  duty  to  ascertain  that  a  bill 
presented  to  him  has  been  passed  iu  compliance  with  the  constitutional 
requirements  relating  to  the  passage  of  bills.  It  follows,  that  when  he 
signs  a  bill  no  inference  arises  as  to  the  regularity  of  its  passage."*^  (See 
discussion  article  4,  section  13,  sub-heading,  "Necessity  for  journal  entries.") 

A  bill  signed  by  the  Governor  does  not  become  a  law  unless  it  is  a 
bill  passed  by  both  houses  of  the  General  Assembly.  Thus  in  the  case  of 
People  V  Lueders""  the  central  registration  act  was  held  void  because,  as 
signed  by  the  Governor,  it  omitted  several  amendments  to  the  original 
bill  which  were  concurred  in  by  both  houses. 


Date  of  going  into  effect.  While  a  bill  signed  by  the  Governor  becomes 
a  law  as  soon  as  it  is  signed  by  him,  it  does  not  become  effective  until 
July  1st  following  its  passage,  unless  passed  as  an  emergency  measure  by 
a  vote  of  two-thirds  of  all  members  elected  to  each  house.  If  a  bill  is  neither 
signed  nor  vetoed  by  the  Governor  within  ten  days  after  its  presentation  to 
him,  it  becomes  a  law  at  the  expiration  of  the  10  days  and  under  ordinary 
circumstances  goes  into  effect  on  July  1  following.  A  ;;erious  question 
arises,  however,  in  a  case  where  the  ten  days  begin  before  July  1st,  but 
do  not  expire  until  after  July  1st,  following  the  passage  of  the  bill  by  the 
two  houses.  As  a  matter  of  practice  the  General  Assembly  never  continues 
in  session  after  July  1st  and  in  any  case  when  the  ten  days  expires  after 
July  1st  the  situation  is  always  accompanied  by  the  adjournment  of  the 
General  Assembly  before  the  expiration  of  the  ten  days,  in  which  event, 
the  Governor,  under  the  terms  of  this  section,  has  ten  days  from  the  date 
of  adjournment  in  which  to  consider  the  bill.  Under  such  circumstances 
if  the  Governor  retains  the  bill  for  the  full  period  of  ten  days  after  adjourn- 
ment it  is  not  clear  when  the  bill  becomes  an  effective  law.  If  he  files  it 
with  the  Secretary  of  State  without  objection  before  July  1st  it  is  not  only 
not  clear  as  to  when  it  becomes  an  effective  law,  but  it  is  also  uncertain  as 
to  when  it  becomes  a  law.  (See  discussion  article  4,  section  13,  subhead- 
ing, "Date  of  going  into  effect") 


■'^  As  amended  by  the  third  amendment  to  the  constitution.  The  amendment 
was  proposed  by  resolution  of  the  general  assembly  in  1883.  It  was  ratified  by 
the  people  on  November  4,  1884,  and  proclaimed  adopted  on  November  28. 
1884.      The   section   as   it   originally   appeared  is   as   follows: 

"Section  16.  Every  bill  passed  by  the  General  Assembly  shall,  before  it  be- 
comes a  law,  be  presented  to  the  Governor.  If  he  approve,  he  shall  sign 
it,  and  thereupon  it  shall  become  a  law;  but  if  he  do  not  approve,  he  shall  re- 
turn it,  with  his  objections,  to  the  house  in  which  it  shall  have  originated,  which 
house  shall  enter  the  objections  at  large  upon  its  journal,  and  proceed  to  recon- 
sider the  bill.  If,  then,  two-thirds  of  the  members  elected  agree  to  pass  the  same, 
it  shall  be  sent,  together  with  the  objections,  to  the  other  house,  by  which  it  shall 
likewise  be  reconsidered;  and  if  approved  by  two-thirds  of  the  members  elected 
to  that  house,  it  shall  become  a  law,  notwithstanding  the  objections  of  the 
Governor.  But  in  all  such  cases  the  vote  of  each  house  shall  be  determined  by 
yeas  and  nays,  to  be  entered  on  the  Journal.  Any  bill  which  shall  not  be 
returned  by  the  Governor  within  ten  days  (Sundays  excepted),  after  it  shall 
have  been  presented  to  him,  shall  become  a  law  in  like  manner  as  if  he  had 
signed  it.  unless  the  General  Assembly,  by  their  adjournment,  prevent  its  re- 
turn; in  which  case  it  shall  be  filed  with  his  objections,  iu  the  office  of  the 
Secretary  of  State,  within   ten   days  a^'ter  such   adjournment,   or  become  a  law." 

""Neiberger    v    McCullough,    253    111.    312    (1912). 

50  283   111.   287    (1918);   see   Cook  County   v   Healy.    222   111.    310    (1906). 


Article  5,  Section  16  143 

Time  allowed  Governor  to  consider  bills.  It  will  be  noticed  that  there 
are  two  ten  day  periods  given  the  Governor  for  his  consideration  of  bills. 
When  a  bill  is  presented  to  the  Governor  during  a  session  of  the  General 
Assembly  the  Governor  has  ten  days  from  the  date  when  the  bill  is  pre- 
sented to  him  in  which  to  consider  the  bill.  If,  however,  the  General 
Assembly  adjourns  during  this  ten  day  period,  the  Governor  has  an  addi- 
tional ten  days  from  the  date  of  the  adjournment.  From  the  first  ten  day 
period,  Sundays  are  expressly  excluded  and  the  Supreme  Court  has  held 
that,  by  implication,  Sundays  are  to  be  excluded  from  the  second  ten  day 
period. ^^ 

In  the  opinion  of  tlie  Attorney  General  holidays  other  than  Sundays 
are  not  to  be  deducted  in  computing  the  ten  day  periods.  The  Attorney 
General  has  stated  that  the  Governor  may  not  veto  or  approve  a  bill  on 
Sunday,  but  he  may  approve  or  veto  a  bill  on  holidays  other  than  Sunday. 
The  Attorney  General  has  likewise  held  that  the  day  upon  which  the  bill 
is  presented  to  the  Governor  should  be  excluded  and  the  day  upon  which 
the  Governor  exercises  his  powers  should  be  included  in  determining  the 
ten  day  period.^^ 

The  Supreme  Court  has  stated  that  after  the  Governor  has  actually 
approved  or  disapproved  a  bill  and  has  filed  it  with  the  Secretary  of 
State,  it  is  beyond  his  power  to  take  any  further  action  with  respect  to 
that  bill,  even  though  the  time  allowed  him  by  the  constitution  for  his 
consideration  of  the  bill  has  not  yet  expired.^  But  the  Governor  may  re- 
voke his  approval  or  disapproval  of  a  bill,  provided  he  has  not  yet  filed 
the  bill  in  the  ofiice  of  the  Secretary  of  State.  Thus  in  People  v 
McCullough^^  it  was  held  that  the  Governor  might,  after  approving  a  bill, 
revoke  his  approval  and  veto  the  bill,  if  it  had  not  yet  been  filed  in  the 
office  of  the  Secretary  of  State. 

It  appears  from  the  case  of  People  v  Rose''^  however,  that  if  the  Gov- 
ernor has  filed  a  bill  with  the  Secretary  of  State  without  either  his  approval 
or  disapproval,  within  the  ten  day  period,  the  Governor's  power  to  act  with 
respect  to  that  bill  has  not  been  exhausted.  In  that  case  the  Supreme 
Court  refused  to  issue  a  writ  of  mandamus  to  compel  the  Secretary  of 
State  to  authenticate  as  a  law  a  bill  so  filed  by  the  Governor  with  the 
Secretary  of  State,  until  the  expiration  of  the  ten  days  allowed  the  Gov- 
ernor for  his  consideration. 


Appropriations.  That  part  of  section  16  which  will  be  considered  in 
this  subheading  is  as  follows:  "Bills  making  appropriations  of  money  out 
of  the  treasury  shall  specify  the  objects  and  purposes  for  which  the  same 
are  made,  and  appropriate  to  them  respectively  their  several  amounts  in 
distinct  items  and  sections.  And  if  the  Governor  shall  not  approve  any 
one  or  more  of  the  items  or  sections  contained  in  any  bill,  but  shall  ap- 
prove the  residue  thereof,  it  shall  become  a  law,  as  to  the  residue,  in  like 
manner  as  if  he  had  signed  it.  The  Governor  shall  then  return  the  bill, 
with  his  objections  to  the  items  or  sections  of  the  same  not  approved  by 
him,  to  the  house  in  which  the  bill  shall  have  originated,  which  house 
shall  enter  the  objections  at  large  upon  its  journal,  and  proceed  to  recon- 
sider so  much  of  said  bill  as  is  not  approved  by  the  Governor." 

Governor's   power  to   veto   items. 

"The  purpose  of  the  amendment  was  to  enlarge  the  veto  power  by 
authorizing  the  Governor  to  veto  items  in  appropriation  bills.     Prior  to  the 


f^i  People    V    Rose.    1fi7    111.    147    (1887). 
^^2  Report   Attorney   General    1918,   p.    571. 

^'People    V    McCullouih,    210    111.    488    (1904);    People    v    Hatch.    19    111.    283 
(1857). 

"210   111.   488    (1904). 
»167    111.    147    (1897), 


144  Article  5,  Section  16 

adoption  of  the  amendment,  the  Governor  was  forced  to  treat  an  appropri- 
ation bill  as  any  other  bill.  He  had  to  accept  such  a  bill  as  a  whole 
or  veto  it  as  a  whole.  If  the  Governor  disapproved  of  one  or  two  items 
in  an  appropriation  measure  consisting  of  several  items,  he  was  com- 
pelled to  accept  the  measure  as  presented  to  him,  or  reject  it  in  its  en- 
tirety. The  difficulties  attending  the  passage  of  an  extensive  appropriation 
bill  had  the  effect  of  causing  the  chief  executive  to  refrain  from  rejecting 
such  a  bill  in  toto,  even  if  he  strongly  disapproved  of  certain  items  of  appro- 
priations therein  contained.  For  example,  a  bill  making  appropriations 
for  the  expenses  of  the  state  government  could  hardly  be  rejected  as  a 
whole  merely  because  it  contained  one  or  two  undesirable  items.  For 
this  reason  the  Governor's  power  to  veto  appropriation  bills  was  decidedly 
limited."  (Constitutional  Conventions  in  Illinois,  Second  Edition,  pp.  36-7.) 
The  principal  question  relating  to  the  Governor's  power  in  this  con- 
nection is  the  question  of  what  constitutes  an  item  which  the  Governor 
may  veto.  Thus  where  an  appropriation  read  "To  the  State  Board  of  Agri- 
culture $153,  150"  followed  by  an  enumeration  of  the  various  purposes 
for  which  this  sum  v/as  to  be  expended  with  an  amount  for  each  purpose, 
the  total  being  $153,  150,  the  Supreme  Court  held  that  each  of  the  consti- 
tuent amounts  were  items  and  the  Governor  might  legally  veto  one  of 
them.'"  On  the  other  hand,  the  court  has  held  that  the  Governor  might 
not,  where  the  biennial  appropriation  read  $2,500  per  annum,  veto  the  words 
"per  annum,"  nor  might  the  Governor  cut  a  figure  in  this  manner, — "I 
approve  in  the  sum  of  $3,500  and  veto  all  in  excess  of  said  sum  of  $3,500."" 


Necessity  for  itemization. 

It  is  apparent  both  from  the  context  of  this  amendment  to  the  consti- 
tution and  from  a  consideration  of  the  purpose  for  which  it  was  adopted 
that  an  appropriation  must  be  for  a  definite  amount.  Otherwise  the  power  of 
the  Governor  to  veto  items  in  appropriation  bills  would  be  defeated.  The 
Supreme  Court  has  therefore  held  that  an  appropriation  of  "such  sums 
as  may  be  necessary  to  refund  the  taxes  on  real  estate"  is  invalid,  since  no 
definite  amount  is  appropriated.'"* 

The  determination  of  when  an  appropriation  bill  is  suflficiently  itemized 
to  satisfy  this  section  of  the  constitution  is  a  difficult  problem.  In  the  case 
of  People  V  Brady,'®  the  Supreme  Court  said:  "The  word  'item'  is  in  com- 
mon use  and  well  understood  as  a  separate  entry  in  an  account  or  a 
schedule,  or  a  separate  particular  in  an  enumeration  of  a  total  which  is 
separate  and  distinct  from  other  particulars  or  entries."  This  definition, 
however,  throws  no  light  upon  the  question  of  the  extent  to  which  itemiza- 
tion is  necessary  in  order  to  comply  with  the  constitution.  It  seems  clear 
that  the  General  Assembly  must  have  a  reasonable  discretion  to  determine 
what  shall  constitute  items.  Thus  in  the  case  of  Martens  v  Brady"**  it  was  con- 
tended that  an  appropriation  of  $400,000  for  the  construction  and  maintenance 
of  roads  could  not  be  made  in  one  item.  But  the  court  held  that  these 
matters  were  so  related  as  properly  to  constitute  a  single  item.  "It  is 
not  to  be  supposed  that  the  Governor  would  veto  one  of  these  items  and 
approve  the  other."  Again  in  the  case  of  Mitchell  v  Lowden"^  it  was  urged 
that  the  appropriation  of  $60,000,000  for  the  construction  of  hard  roads 
was  not  sufficiently  itemized.  In  that  case  the  court  said:  "The  single 
purpose  for  which  the  money  appropriated  is  to  be  used  is  the  construction 
of  the  system  of  roads.  There  will,  perhaps  be  many  contracts  for  the 
construction  of  parts  of  the  roads,  but  each  contract  is  not  an  item  which 


'•"People   V   Brady,    277   111.    124    (1917). 
•^7  Fergus    v    Russel.    270    111.    304    (1915). 
M  Fergus    V    Russel.    270    111.    304    (1915). 
^9  277   111.   124    (1917). 
«»264   111.    178    (1914). 
«i288   111.   327    (1919). 


Article  5,  Sections  17-20  115 

can  be  separately  stated  and  for  which  a  definite  amount  can  be  appro- 
priated. There  will,  perhaps,  be  many  contracts  for  the  purchase  of 
materials  and  tools,  but  each  contract  of  purchase  is  not  an  item  which 
can  be  separately  stated  and  for  which  a  definite  sum  can  be  appropriated. 
Nor  is  the  purchase  of  all  of  one  kind  of  material  such  an  item.  All  are 
items  of  the  aggregate,  but  the  constitution  does  not  require  an  itemization 
in  minute  detail  of  every  expenditure  of  money  in  connection  with  the 
general  purpose  for  which  an  appropriation  is  made.  The  legislature 
couid  not  know  at  the  time  of  making  the  appropriation,  even,  approx- 
imately, the  amount  required  for  each  of  the  various  contracts  or  pur- 
chases." On  the  other  hand,  the  Attorney  General  has  said  that  a  bill 
giving  the  board  of  commissioners  of  the  deep  waterway  the  right  to  expend 
$500,000  for  the  purchase  of  lands,  machinery,  supplies  salaries,  wages, 
and  materials  is  in  direct  violation  of  the  injunction  to  itemize  contained 
in  this  section.*^-  (See  Constitutional  Convention  Bulletin  No.  4,  pp.  269-287.) 
(For  an  historical  discussion  relating  to  the  development  of  the  veto 
power  of  the  Governor  of  Illinois  see  Debel,  "The  Veto  Power  of  the 
Governor  of  Illinois,"  University  of  Illinois  Studies  "in  the  Social  Sciences, 
1917.) 


Section  17.  In  case  of  the  death,  conviction  or  impeachment, 
failure  to  qualify,  resignation,  absence  from  the  State,  or  other  dis- 
ability of  the  Governor,  the  powers,  duties  and  emoluments  of  the 
office  for  the  residue  of  the  term,  or  until  the  disability  shall  be  re- 
moved, shall  devolve  upon  the  Lieutenant  Governor. 


Section  18.  The  Lieutenant  Governor  shall  be  President  of 
the  Senate,  and  shall  vote  only  when  the  Senate  is  equally  divided. 
The  Senate  shall  choose  a  President,  pro  tempore,  to  preside  in  case 
of  the  absence  or  impeachment  of  the  Lieutenant  Governor,  or 
v/hen  he  shall  hold  the  office  of  Governor. 


Section  19.  If  there  be  no  Lieutenant  Governor,  or  if  the  Lieu- 
tenant Governor  shall,  for  any  of  the  causes  specified  in  section 
seventeen  of  this  article,  become  incapable  of  performing  the  duties 
of  the  office,  the  President  of  the  Senate  shall  act  as  Governor  until 
the  vacancy  is  filled  or  the  disability  removed ;  and  if  the  President 
of  the  Senate,  for  any  of  the  above  named  causes,  shall  become  in- 
capable of  performing  the  duties  of  Governor,  the  same  shall  de- 
volve upon  the  Speaker  of  the  House  of  Representatives. 


Section  20.     If  the  office  of  Auditor  of  Public  Accounts,  Treas- 
urer, Secretary  of  State,  Attorney  General,  or  Superintendent  of 


•52  Report   Attorney   General   1912,   p.   960;   and   see   Report   Attorney    General 
1912.    p.    1013:    People    v    Brady,    277    111.    124    (1917). 


146  Article  5,  Sections  21,  22 

Public  Instruction  shall  be  vacated  by  death,  resignation  or  other- 
wise, it  shall  be  the  duty  of  the  Governor  to  fill  the  same  by  ap- 
pointment, and  the  appointee  shall  hold  his  office  until  his  successor 
shall  be  elected  and  qualified  in  such  manner  as  may  be  provided 
by  law.  An  account  shall  be  kept  by  the  officers  of  the  Executive 
Department,  and  of  all  the  public  institutions  of  the  State,  of  all 
moneys  received  or  disbursed  by  them,  severally,  from  all  sources, 
and  for  every  service  performed, -and  a  semi-annual  report  thereof 
be  made  to  the  Governor,  under  oath ;  and  any  officer  who  makes  a 
false  report  shall  be  guilty  of  perjury,  and  punished  accordingly. 

In  1910  the  Attorney  General,  rendered  an  opinion  that  the  state  board 
of  agriculture"^  and  the  state  horticultural  societj'**^  were  public  institution- 
within  the  meaning  of  this  section  and  must  therefore  submit  a  semi-annual 
report  to  the  Governor.  It  is  the  opinion  of  the  Attorney  General  that  this 
section  applies  not  only  to  state  officers  who  receive  fees  for  services  per- 
formed in  their  official  capacities,  but  includes  as  well  officers  who  merely 
disburse  appropriations  made  to  them  by  the  General  Assembly  through 
warrants  drawn  by  the  auditor  on  the  treasurer.®"* 

It  has  been  held  that  the  approval  of  a  report  by  the  Governor  does  not 
operate  to  relieve  the  officer  making  the  report  from  liability  in  the  event 
that  he  has  made  an  incorrect  report.*^® 


Section  21.  The  officers  of  the  Executive  Department,  and  of 
all  the  public  institutions  of  the  State,  shall,  at  least  ten  days  pre- 
ceding each  regular  session  of  the  General  Assembly,  severally  re- 
port to  the  Governor,  who  shall  transmit  such  reports  to  the  General 
Assembly,  together  with  the  reports  of  the  Judges  of  the  Supreme 
Court  of  defects  in  the  Constitution  and  laws;  and  the  Governor 
may  at  any  time  require  information,  in  writins:,  under  oath,  from 
the  officers  of  the  Executive  Department,  and  all  officers  and  man- 
agfers  of  State  institutions,  upon  any  subject  relating  to  the  con- 
dition, management  and  expenses  of  their  respective  offices. 

(See   discussion   article   5,   section    20.) 


Section  22.  There  shall  be  a  seal  of  the  State,  which  shall  be 
called  the  "Great  Seal  of  the  State  of  Illinois,"  which  shall  be  kept 
by  the  Secretary  of  State,  and  used  by  him,  officially,  as  directed  by 
law. 


(See  discussion  article  5,  section  1,  sub-heading  "Secretary  of  State".) 


«3  Report    Attorney    General    1910,    p.  666. 

«*  Report    Attorney    General    1910,    p.  163. 

«« Report    Attorney    General     1904,    p.  38.'>. 

«« People    v    Whittomore,    253    111.    378  (1912). 


Article  5,  Sections  23,  24  147 

Section  23.  The  officers  named  in  this  article  shall  receive  for 
their  services  a  salary,  to  be  established  by  law,  which  shall  not  be 
increased  or  diminished  during  their  official  terms,  and  they  shall 
not,  after  the  expiration  of  the  terms  of  those  in  office  at  the  adop- 
tion of  this  constitution,  receive  to  their  own  use  any  fees,  costs, 
perquisites  of  office,  or  other  compensation.  And  all  fees  that  may 
hereafter  be  payable  by  law  for  any  services  performed  by  any  offi- 
cer provided  for  in  this  article  of  the  constitution,  shall  be  paid  in 
advance  into  the  State  treasury. 

Disposition  of  fees  collected  by  state  officers  in  their  official  capacities. 
Fees  collected  by  the  officers  named  in  this  article  for  services  performed 
in  their  official  capacities  must  be  paid  into  the  state  treasury  without  any 
deduction  whatever.*'' 

It  has  been  held  that  a  contract  whereby  the  state  treasurer  was  to 
deposit  money  in  certain  banks,  the  interest  on  such  money  to  be  paid  to 
that  officer  personally,  is  illegal  as  contrary  to  the  public  policy  of  the 
state  declared  by  this  provision  of  the  constitution/*^ 


Changes  in  salaries  during  terms  of  office.     (See  discussion  article  4, 
section  21,  subheadings,  "In  general"  and  "Elective  state  officers".) 


Section  24.  An  office  is  a  public  position,  created  by  the  con- 
stitution or  law,  continuing  during  the  pleasure  of  the  appointing 
power,  or  for  a  fixed  time,  with  a  successor  elected  or  appointed. 
An  employment  is  an  agency,  for  a  temporary  purpose,  which 
ceases  when  that  purpose  is  accomplished. 


In  general.  The  question  whether  a  person  performing  services  for 
the  state  was  an  officer  or  an  employee  first  arose  under  the  constitution 
of  1848.  That  constitution  did  not  define  the  words  "office"  or  "employment". 
It  did  provide,  however,  that  the  General  Assembly  should  not  make  ap- 
pointments to  office.  In  Bunn  v  People*"  the  question  presented  was  whether 
or  not  the  commissioners  charged  with  the  duty  of  supervising  the  con- 
struction of  the  new  state  house  were  officers  whose  appointments  by  the 
General  Assembly  was  forbidden  by  the  constitution.  In  holding  that  the 
commissioners  were  not  officers,  and  that  they  therefore  might  be  appointed 
by  the  General  Assembly,  the  court  defined  the  words  "office"  and  "em- 
ployment" and  this  definition  was,  in  substance,  carried  forward  into  this 
section  of  the  present  constitution. 


Salaries  of  state  officers.  Section  16  of  article  4  provides  that  bills 
making  appropriations  for  the  salaries  of  state  officers  shall  contain  no 
provision  on  any  other  subject.  In  making  appropriations  for  the  salaries 
and  wages  of  the  officers  and  employees  of  the  state  it  becomes  necessary 


"^People  V  Sargent.  254  111.  514  (1912);  Report  Attorney  General  1914.  p. 
225;  Board  of  Trade  v  Cowen,  252  111.  554  (1911);  Whittemore  v  People.  227  111. 
453     (1907). 

«« Estate   of   Ramsey   v  Whitbeck,    183   111.    550    (1900). 

«9  45    111.    397    (1867). 


148  Article  5,  Section  24 

to   determine   who  are   officers   and   who   are   employees,   and   this   is   often 
a  difficult  question.     In  Fergus  v  RusseP  several  items   of  appropriations 
for  certain  persons  performing  services  for  the  State  were  held  invalid  be- 
cause these  persons  in  the  opinion  of  the  court  were  officers  and  the  items 
were  included  in  a  bill  making  appropriations  for  purposes  other  than  that 
of  salaries  of  state  officers.     In  that  case  the  court,  in  referring  to  this  sec- 
tion of  the  constitution,  said:      "This  definition  contains  two  essential  ele- 
ments, both  of  which  must  be  present  in  determining  any  given  position  to 
be  an  office:      (1)   The  position  must  be  a  public  one,  created  either  by  the 
constitution  or  by  law;  and  (2)   it  myist  be  a  permanent  position  with  con- 
tinuing duties.     To  determine  whether  the  first  element  is  present  we  have 
but  to  look  to  our  constitution  and  our  statutes  to  see  whether  the  particular 
position  under  consideration  has  been  created  by  the  constitution  or  by  law. 
An  office  is  created  by  law  only  as  a  result  of  an  act  passed  for  that  purpose. 
The  mere  appropriation  by  the  General  Assembly  of  money  for  the  payment  of 
compensation  to  the  incumbent  of  a  specified  position  does  not  have  the  effect 
of  creating  an  office  or  of  giving  such  incumbent  the  character  of  an  officer,  as 
an  office  cannot  be  created  by  an  appropriation  bill.  To  ascertain  whether  the 
second  element  is  present  it  is  necessary  to  determine  the  character  of  the  posi- 
tion. This  is  not  determined  by  the  method   in  which  the  occupant  or  holder  of 
the  position  is  selected — whether  by  appointment  or  election.     If  the  duties  of 
the  office  are  continuing  and  it  is  necessary  to  elect  or  appoint  a  successor  to 
the  several  incumbents,  then  the  second  element  is  present  whether  the  in- 
cumbent be   selected  by   appointment  or    by   election,   and   whether   the   in- 
cumbent be  appointed  during  the  pleasure  of  the  appointing  power  or  be 
elected  for  a  fixed  term."     Applying  the  rule  thus  laid  down  the  court  held 
that  the  following  persons  were  officers  wiiose  salaries  could  not  be  approp- 
riated in  a  bill  dealing  with  another  subject:  assistant  attorney  generals  in 
charge  of  the  inheritance  tax  office,  the  chief  and  deputy  grain  inspectors, 
members  of  the  board  of  veterinary  examiners,  the  secretary  of  the  board  of 
pardons,  the  executive  officer  of  the  state  board  of  health,  the  secretary  of 
the  civil  service  commission,  the  director  of  the   state  geological  commis- 
sion, members  and  secretary  of  the  board  of  examiners  of  architects,  mem- 
bers and  secretary  of  the  board  of  dental  examiners,  members  of  the  board 
of  barber  examiners,  the  state  inspector  of  apiaries,  members  of  the  state 
board   of   pharmacy,   deputy   fire   marshals,   members    and    secretary   of   the 
state  board  of  registered  nurses,  members  and  secretary  of  the  Illinois  stal- 
lion  registration   board,   secretary   of   the   industrial    commission,    members 
and  secretary  of  the  board  of  examiners  of  horse  shoers  and  members  and 
secretary    of   the    optometry   board.'^      It    has    also    been    held    that    factory 
inspectors    and    imperintendents    of    free    employment    agencies    are    officers 
whose  salaries  must  be  appropriated  in  a  bill  relating  to  no  other  subect.^^ 


Removal  of  state  officers.  This  definition  has  also  been  applied  in  con- 
struing section  12  of  article  5  which  relates  to  the  Governor's  power  to  re- 
move state  officers.  In  the  case  of  People  v.  Wilcox'-'  it  was  held  that  the 
West  Chicago  Park  Commissioners  were  officers  of  the  state  within  this 
definition  and  that  the  Governor  might  therefore  remove  them  from  office 
under  section  12  of  article  5.  In  that  case  the  court  said:  "The  members  of 
the  board  of  West  Chicago  Park  Commissioners  are  agents,  by  whom  in  part 
the  people  of  the  state  carry  on  the  government.  Their  functions  are  es- 
sentially political  and  concern  the  state  at  large  although  they  are  to  be  .dis- 
charged within  the  town  of  West  Chicago.     .      .      .     And  whetJier  tested  by 


™270   111.   304    (1915). 

''I  Report  Attorney  General  10T6,  pp.  17-21.  Most  of  these  offices  were 
abolished    by    the    Civil    Administrative    Code     (1917). 

"Ritchie  v  People,  155  111.  98  (1895);  Mathews  v  People.  202  IIJ.  389  (1903). 
For  definition  of  the  word  office  as  used  in  a  statute  see  People  v  Coffin,  282 
111.    599    (1918). 

^90   111.   186    (1878). 


Article  5,  Section  25  149 

the  decision  in  the  Bunn  case  or  by  the  constitutional  definition  we  can  not 
doubt  that  these  park  commissioners  come  fully  within  the  term  officers." 


Tenure  of  office.  In  the  case  of  People  v  Loefl[ier'*  it  was  contended 
that  the  city  civil  service  act  was  invalid  since  it  created  a  tenure  of  office 
unknown  to  the  constitution, — tenure  during  good  behavior  or  until  the  in- 
cumbent is  removed, — thereby  violating  this  section  of  the  constitution.  But 
the  court  said  that  the  positions  to  which  the  civil  service  act  applies  are 
more  in  the  nature  of  employments  than  offices,  and,  at  any  rate,  when 
offices  are  created  by  statute  those  offices  are  wholly  within  the  control  of 
the  legislature  which  created  them. 


Section  25.  All  civil  officers,  except  members  of  the  General 
Assembly  and  such  inferior  officers  as  may  be  by  law  exempted, 
shall,  before  they  enter  on  the  duties  of  their  respective  offices,  take 
and  subscribe  the  following  oath  or  affirmation : 

"I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I  will 
support  the  Constitution  of  the  United  States,  and  the  Constitution 
of  the  State  of  Illinois,  and  that  I  will  faithfully  discharge  the  duties 

of  the  office  of according  to  the 

best  of  my  ability." 

And  no  other  oath,  declaration  or  test  shall  be  required  as  a 
qualification. 


Necessity  for  an  oath.  In  1875  in  the  case  of  School  Directors  v  Peo- 
ple,'" the  Supreme  Court  held  that  where  a  statute  prescribes  the  pre- 
requisites to  the  assumption  of  office  by  a  township  treasurer  and  does  not 
name  an  oath  as  one  of  the  necessary  formalities,  the  treasurer  is  thereby 
exempted  from  taking  an  oath.  In  that  case  the  court  said:  "It  certainly 
has  not  been  understood  by  the  legislative  department  that  this  constitu- 
tional provision  is  self-executing,  as  express  provisions  of  law  have  been  en- 
acted, prescribing  with  particularity  every  essential  step  to  be  taken  by  each 
person  elected  or  appointed  to  an  office,  the  mode  of  election  or  appointment, 
the  giving  of  bonds,  the  manner,  time,  etc.,  of  taking  the  oath  of  office 
(where  such  oath  is  required)  in  order  to  become  qualified  to  perform  the 
duties  of  the  office.  If  it  were  supposed  that  this  constitutional  provision 
was  self-enforcing,  all  the  numerous  laws  requiring  the  taking  of  oflEicial 
oaths  would  be  supererogatory.  But  the  section  of  the  constitution  referred 
to  expressly  leaves  it  in  the  discretion  of  the  legislature  to  exempt  'inferior 
officers'  from  taking  the  prescribed  oath  of  oflfice.  The  township  treasurer 
is  appointed  by  the  board  of  trustees  of  schools  and  falls  within  the  designa- 
tion of  'inferior  officers'.  As  the  legislature,  in  prescribing  the  prerequisites 
to  the  right  to  perform  his  official  duties,  has  required  only  that  the  township 
treasurer  shall  be  a  resident  of  the  township,  and  neither  a  trustee  nor  a 
director,  and  be  appointed  by  the  trustees,  and  give  an  oflScial  bond  in  a 
sufficient  amount  to  cover  all  liabilities,  it  is  not  unreasonable  to  infer  the 
legislative  intention  that  he  should  not  take  an  oath  of  oflEice.  .  .  .  Not 
requiring  an  oath  of  office  to  be  taken,  is  the  dispensing  with  it  by  the  legis- 
lature in  this  case."     Similarly,  it  has  been  held  that  where  a  statute  pre- 


''  175    Til.    .SS5    (1898). 
W79    111.    511    (1875). 


150  Article  5,  Section  25 

scribes  for  drainage  commissioners  an  oath  different  from  the  constitutional 
oath,  only  the  statutory  oath  need  be  taken.™ 


Other  oaths  or  tests.  The  word  "test",  as  used  in  this  section,  is 
synonymous  with  the  word  "oath".  Thus,  a  statute  requiring  election  com- 
missioners to  be  selected  from  members  of  the  two  leading  political  parties, 
does  not  violate  this  section  of  the  constitution  as  imposing  an  additional 
test."  Similarly,  a  civil  service  act  is  not  invalid  as  requiring  an  additional 
test,  when  it  requires  an  examination  as  a  criterion  of  fitness  to  office.'" 

The  Attorney  General  has  held  that  the  word  oath,  as  used  here,  refers 
only  to  an  oath  concerning  religion  or  politics.  The  Attorney  General  has 
held  that  a  statute  requiring  an  election  commissioner,  in  assuming  office,  to 
take  oath  that  he  has  resided  in  the  city  for  ten  years,  does  not  violate  this 
section.'* 


^"People  V   Gary,    196   111.    310    (1902). 
"People   v   Hoffman.    116    111.    587    (1886). 
"People   V   Kipley.    171    111.    44    (1898). 
^'Report  Attorney   General    1913,    p.    220. 


ARTICLE  VI— JUDICIAL  DEPARTMENT 


Section  1.  The  judicial  powers,  except  as  in  this  article  is 
otherwise  provided,  shall  be  vested  in  one  Supreme  Court,  Circuit 
Courts,  County  Courts,  justices  of  the  peace,  police  magistrates,  and 
in  such  courts  as  may  be  created  by  law  in  and  for  cities  and  incor- 
porated towns. 


Exercise  of  judicial  powers.  This  section  vests  all  of  the  judicial 
powers  of  the  state  in  the  courts  established  and  authorized  to  be  created 
by  the  provisions  of  article  6  of  the  constitution.  The  exception  in  this 
section  has  been  held  to  refer  to  the  provisions  of  sections  11  and  20  of  this 
article,  relating  to  the  appellate  and  probate  courts,  respectively.^  The  General 
Assembly  is,  therefore,  prohibited  from  authorizing  a  person  who  is  not 
a  judge  of  one  of  these  courts  to  perform  a  judicial  function.  Thus,  a 
clerk  of  a  court  may  not  be  authorized  by  statute  to  enter  a  default  judg- 
ment in  vacation.^  A  mayor  of  a  city  may  not  be  empowered  by  statute 
to  hear  and  decide  cases  involving  the  violation  of  city  ordinances.^  The 
Genera^l  Assembly  may  not  authorize  a  recorder  of  deeds  to  adjudicate 
titles  to  real  estate,  the  adjudication  to  be  complete  unless  attacked  within 
five  years.*  An  attorney  at  law  who  has  not  been  elected  or  appointed  as 
a  judge,  in  the  manner  prescribed  by  the  constitution,  cannot  by  mere  agree- 
ment of  the  parties,  act  as  a  judge  of  the  circuit  court."^  Three  citizens  may 
not  be  authorized  by  municipal  ordinance  to  ascertain  and  assess  damages 
for  injuries  to  property  caused  by  stray  cattle."  A  county  clerk  may  not  be 
empowered  by  statute  to  impose  penalties  upon  persons  violating  a  statute 
requiring  the  cleaning  of  streams  running  through  their  property.''  Nor 
may  an  administrative  agency,  such  as  a  civil  service  commission  or  the 
industrial  board,  be  authorized  by  statute  to  punish  for  contempt  witnesses 
who  neglect  or  refuse  to  obey  the  agency's  subpoenas.^  Such  powers,  being 
judicial,  can  only  be  exercised  by  judges  of  the  courts  created  by  the  con- 
stitution. 

HoM'^ever,  neither  the  section  under  consideration,  nor  article  3,  pre- 
vents the  exercise  of  powers  involving  discretion  and  judgment  which  are 
in  their  nature  judicial,  by  administrative  agencies  charged  primarily  with 
the  enforcement  of  the  laws.  For  example,  executive  boards  administer- 
ing the  laws  regulating  the  practice  of  medicine  or  of  architecture,  may  be 
empowered  by  statute  to  revoke  a  practitioner's  license,  after  -a  notice  and 
hearing,   for  violation   of   the   statutory   provisions.     The   exercise   of   such 


iBerkowitz    v    I^ester.    121    111.    09    (1887). 

2  Hall   v   Marks.    34    111.    358    (1864):    Veto   Messages    1019,    p.    42. 

3  People  v  Maynard.  14  111.  419  (1853);  Beesman  v  City  of  Peoria.  16  111. 
484    (1855). 

"People  v  Chase,  165  111.  527  (1897);  compare  People  v  Simon.  176  111.  165 
(1898). 

^  Davis  V  Wilson,   65  111.   525    (1872);  Hoagland  v  Creed,   81   111.   506    (1876). 

"Bullock    V   t^eomble.    45    111.    218     (1867). 

TC.  C.  C.  &  St.  L.  Ry:  Co.  v  People.   212   111.   638    (1904). 

8  People  V  Kipley.  171  111.  44  (1898);  Mclntyre  v  People,  227  111.  26  (1907); 
Report   Attorney    General    1914,    p.    639;    Veto    Message    No.    1, 

151 


I.V.^  Article  6,  Section  1 

powers,  since  it  involves  the  hearing  of  evidence,  the  application  of  the 
law  to  the  facts  determined,  and  the  adjudication  of  private  rights,  may 
perhaps  be  said  to  be  the  exercise  of  judicial  powers.  Nevertheless,  such 
statutes  have  been  upheld  on  the  ground  that  the  exercise  of  these  quasi- 
judicial  powers  is  merely  incidental  to  the  primary  function  of  the  adminis- 
trative agencies,  namel5^  the  administration  and  enforcement  of  the  laws." 
(See  discussion  article  3,  subheading,  "In  general.") 


Jurisdiction  of  city  courts.  The  clause  "in  and  for  cities  and  incor- 
porated towns"  has  been  construed  to  c6nfine  the  territorial  jurisdiction  of 
city  courts  to  the  cities  in  which  they  are  created.  For  example,  it  has  been 
held  that  the  General  Assembly  is  prohibited  from  authorizing  a  city  court 
to  send  its  original  process  outside  of  the  city.'"  The  municipal  court  of 
Chicago,  which  is  a  city  court  created  pursuant  to  the  provisions  of  the 
clause  under  consideration,'^  may  not  be  empowered  to  try  criminal  cases, 
transferred  to  it  from  the  criminal  court  of  Cook  County,  which  arise  out- 
side of  the  city.'-  A  similar  provision  in  section  1  of  article  5  of  the  con- 
stitution of  1848  was  construed  to  prevent  the  General  Assembly  from  con- 
ferring jurisdiction  upon  a  city  court  over  civil  and  criminal  cases  arising 
in  towns  outside  of  the  city." 

This  limitation  upon  the  territorial  jurisdiction  of  city  courts,  however, 
has  been  held  not  to  apply  to  the  performance  by  the  judge  of  a  city  court, 
of  purely  ministerial  functions,  such  as  authorizing  the  sale  of  a  ward's 
real  estate  by  a  guardian,  in  a  case  where  the  real  estate  was  located  out- 
side of  the  city.''  Moreover,  once  a  city  court  has  acquired  jurisdiction  and 
has  rendered  judgment,  it  may  send  its  process  outside  of  the  city  to  en- 
force that  judgment,'"  and  a  city  court  may  send  its  process  outside  of  the 
city,  into  the  cou  ity,  to  summon  witnesses  and  grand  and  petit  jurors.'" 
(See  discussion  article  2,  section  5,  and  section  9,  subheading,  "Locality  from 
which  jury  is  to  come.") 

The  provisions  of  sections  23  to  26  of  this  article  do  not  so  lifnit  the 
provisions  of  this  section  or  so  exhaust  the  grant  of  judicial  powers  with 
reference  to  Cook  County  as  to  preclude  the  establishment  of  city  courts 
in  that  county.''  However,  the  clause  under  consideration  is  so  limited  by 
the  requirements  of  sections  5  and  9  of  article  2,  relating  to  jury  trials, 
and  of  section  29  of  this  article,  relating  to  uniformity,  as  to  prohibit  the 
application  of  a  general  city  court  act  to  a  city  located  in  two  counties.'"* 
(See  discussion  article  6,  section  29,  subheading,  "Provisions  mandatory;" 
article  2,  section  5,  and  section  9,  subheading,  "Locality  from  which  jury  is 
to  come.") 

(As  to  the  qualifications  of  electors  voting  for  city  judges,  see  discus- 
sion article  7,  section  1,  subheading,  "Woman  suffrage."  As  to  the  quali- 
fications of  judges  of  city  courts,  see  discussion  article  6,  section  17,  sub- 
heading, "Judges  of  courts."  As  to  whether  the  compensation  of  a.  city 
judge  may  be  increased  or  diminished  during  his  term  of  oflfice,  see  dis- 
cussion article  4,  section  21,  subheading,  "Municipal  oflficers."  As  to 
whether  the  General  Assembly  may  prescribe  the  terms  of  office  of  city 
judges,  see  discussion  article  6,  section  32,  subheading,  "Term  of  office." 
As  to  the  requirements  of  uniformity  in  the  organization,  jurisdiction  pro- 

» People  V  Apfelbaum,  251  111.  18  (1911);  Klafter  v  Board  of  Examiners, 
259   111.   15    (1913). 

i«  Ladies  of  Maccabees  v  Harrington,  227  111;  511  (1907);  Wilcox  v  Oonklin, 
255    111.    604    (1912).  i 

"Israelstam  v  U.  S.  Casualty  Co.,  272  111.  161  (1916);  People  v  Olson,  245 
111.   288    (1910). 

12  Miller    v   People,    230    111.    65    (1907). 

I'^People  v  Evans,  18  111.  361  (1857);  People  v  Lippincott,  67  111.  333  (1873)  ; 
Reid    v    Morton.    119    111.    118     (1886). 

i*Reid   V  Morton,   119    III.   118    (1886). 

"People  V  Barr.  22  111.  241    (1859);  Miller  v  People.   230  111.   65    (1907). 

i«  Miller  v  People,  183  111.  423  (1900);  City  of  Chicago  v  Knobel,  232  111. 
112    (1908). 

"Chicago  Terminal  Ry.  Co.   v  Greer.  223   111.   104    (1906). 

18  People  V  Rodenberg,   254  111.   386    (1912). 


Article  6,  Section  2  153 

ceedings  and  practice  of  city  courts,  including  the  municipal  court  of  Chi- 
cago, see  discussion  article  6,   section  29). 


Section  2.  The  Supreme  Court  shall  consist  of  seven  judges, 
and  shall  have  original  jurisdiction  in  cases  relating  to  the  revenue, 
in  mandamus,  and  habeas  corpus,  and  appellate  jurisdiction  in  all 
other  cases.  One  of  said  judges  shall  be  chief  justice ;  four  shall 
constitute  a  quorum,  and  the  concurrence  of  four  shall  be  neces- 
sary to  every  decision. 


Original  jurisdiction.  The  specification  in  this  section  of  the  three 
classes  of  cases  in  which  the  Supreme  Court  may  exercise  original  juris- 
diction has  been  construed  to  deny  to  that  court  the  power  to  exercise 
original  jurisdiction  in  any  other  class  of  cases,  such  as  election  contests,^" 
or  cases  of  certiorarir''  injunction,-^  or  prohibition. -- 

There  have  been  no  judicial  interpretations  of  the  clause,  "cases  re- 
lating to  the  revenue,"  as  used  in  this  section  of  the  constitution.  However, 
the  construction  placed  upon  the  same  words,  as  used  in  a  statute,  may  be 
of  interest.  Under  the  statute  permitting  cases  "relating  to  the  revenue" 
to  be  brought  direct  to  the  Supreme  Court  from  the  trial  court  for  review, 
it  has  been  held  that  such  a  case  is  not  presented  when  all  that  appears 
if;  that  taxes  have  been  collected  and  that  two  or  more  governmental 
agencies  are  claiming  them.-^  A  case  does  relate  to  the  revenue,  within  the 
meaning  of  the  statute,  when  a  controversy,  in  which  the  revenue  is  directly 
and  not  incidentally  affected,  arises  between  a  tax  authority  and  a  tax- 
payer, such  as  a  mandamus  proceeding  to  compel  the  listing  of  property 
for  assessment,-*  or  a  proceeding  to  enjoin  the  collection  of  taxes.^^ 

The  Supreme  Court  takes  jurisdiction  of  so-called  "appeals"  from 
boards  of  review,  pursuant  to  statute,  in  cases  where  property  is  alleged 
to  be  exempt  from  taxation,  not  by  virtue  of  its  appellate  jurisdiction,  for 
there  can  not  be  an  appeal  in  the  strict  sense  of  the  term  from  a  non- 
judicial body,  but  by  virtue  of  its  original  jurisdiction  in  cases  "relating 
to  the  revenue."'"  (See  discussion  article  6,  section  12,  si^ubheading, 
"Original  jurisdiction.") 

The  original  jurisdiction  of  the  Supreme  Court  in  mandamus  is  not 
exclusive.  As  far  as  it  extends,  it  is  concurrent  with  that  of  the  circuit 
courts.  Since  1907,  however,  it  has  been  held  that  this  jurisdiction  is  not 
a  general  one,  but  that  it  is  limited  to  cases  where  the  rights,  interests  or 
franchises  of  the  state  or  of  the  whole  people  are  involved  or  where  high 
official  duties  affecting  the  public  at  large  are  to  be  enforced,  and  to 
emergency  cases  relating  to  local  public  interests  or  private  rights. 
Whether  a  given  case  is  of  such  a  character  is  to  be  determined  by  the 
Supreme  Court,  in  the  exercise  of  its  discretion."^ 


if'Canby  v  Hartzell,  167  111.  628  (1S97);  Baird  v  Hutchinson.  179  111.  435 
(1899). 

20  People  V  f=!uperior  Toiirt,  234  111.  186  (1908);  Courier  v  Simpson  Construc- 
tion   Co..    264    111.    488    (1914). 

21  Bryant  v   People,    71    111.    32    (1873). 

"People  V  Circuit  Court.  169  111.  201  (1897);  People  v  Circuit  Court,  173 
111.    272    (1898). 

2SReed  v  Villagre  of  Chatsworth,  201  111.  480  (1903);  People  v  Holten.  2.59  111. 
219    (1913). 

2^  People   V  Webb.    2.56   111.   364    (1912). 

2^' Mushbangrh  v  Village  of  Rast  Peoria.   260   111.   27    (1913) 

-"Maxwell  v  People,  189  111.  546  (1901);  City  of  Aurora  v  Schoeberlein. 
230    111.    496     (1907). 

27  People  V  City  of  Chicaeo.  193  111.  507  (1901);  People  v  Board  of  Trade 
193  111.  577   (1901);  People  v  Board  of  Education.  197  111.  43   (1902). 


154  Article  6,  Section  2 

The  original  jurisdiction  of  the  Supreme  Court  in  habeas  corpus  is  not 
exclusive,  but  is  concurrent  with  that  of  the  other  courts.-^ 

Appellate  jurisdiction.  A  statement  of  the  judicial  interpretation  of 
the  constitutional  provisions  relating  to  the  appellate  jurisdiction  of  the 
Supreme  Court,  involves,  a  consideration  of  sections  2  and  11  of  this  arti- 
cle. Before  the  establishment  of  the  appellate  courts  in  1877,  the  Supreme 
Court  was  of  the  opinion  that  the  clause  of  section'2,  "and  appellate  juris- 
diction in  all  other  cases,"  operated  to  vest  in  the  Supreme  Court  appellate 
jurisdiction  in  all  cases  other  than  thjose  in  which  it  was  given  original 
jurisdiction/®  However,  for  many  years  this  phrase  has  been  held  to  mean 
merely  that  whenever  jurisdiction  is  conferred  upon  the  Supreme  Court, 
whether  by  the  constitution  or  by  statute,  in  cases  other  than  those  relating 
to  the  revenue,  in  mandamus  and  habeas  corpus,  that  jurisdiction  must  be 
appellate. 

The  only  provisions  of  the  constitution  which  vest  an  appellate  jurisdic- 
tion in  the  Supreme  Court  are  those  of  section  11  of  this  article,  which  pro- 
vide, in  part,  that:  "After  the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy-four,  inferior  appellate  courts,  of  uniform  organization  and  juris- 
diction, may  be  created  in  districts  formed  for  that  purpose,  to  which  such 
appeals  and  writs  of  error  as  the  General  Assembly  may  provide  may  be 
prosecuted  from  circuit  and  other  courts,  and  from  which  appeals  and  writs 
of  error  shall  lie  to  the  Supreme  Court,  in  all  criminal  cases,  and  cases  in 
which  a  franchise,  or  freehold,  or  the  validity  of  a  statute  is  involved."  Con- 
struing the  section  under  discussion  and  these  provisions  of  section  11,  to- 
gether, the  constitution  confers  appellate  jurisdiction  upon  the  Supreme 
Court,  in  but  the  four  classes  of  cases  referred  to,  namely,  "criminal  cases, 
and  cases  in  which  a  franchise,  or  freehold,  or  the  validity  of  a  statute  is 
involved."  Of  this  appellate  jurisdiction,  in  these  cases,  the  Supreme  Court 
may  not  be  deprived.  In  all  other  cases,  the  appellate  jurisdiction  of  the 
Supreme  Court  depends  entirely  upon  statute."** 

The  provisions  quoted  from  section  11  do  not,  however,  require  that  the 
four  classes  of  cases  mentioned  shall  be  brought  direct  from  the  trial  courts 
to  the  Supreme  Court  for  review.  The  General  Assembly  may  provide  that 
any  one,  or  more,  or  all  of  these  cases  shall  first  be  taken  to  the  appellate 
court,  or  it  may  provide  that  any  one,  or  more,  or  all  of  them  shall  be  taken 
direct  to  the  Supreme  Court  from  the  trial  courts.'^^  Where  one  of  these  four 
classes  of  cases  may  be  taken  direct  to  the  Supreme  Court,  it  has  been  held 
that  the  right  to  a  review  in  that  court  of  a  question  relating  to  a  franchise, 
a  freehold  or  the  validity  of  a  statute,  is  waived,  if  the  party  first  takes 
the  case  to  the  appellate  court  for  a  review  of  other  questions.''-  This  rule 
does  not  apply,  however,  if  the  question  as  to  the  validity  of  a  statute  does 
not  arise  until  an  attempt  is  made  to  obtain  a  review  in  the  Supreme  Court 
of  a  decision  of  the  appellate  court."''^  Inasmuch  as  in  cases  other  than  the 
four  classes  of  cases  referred  to  in  section  11,  the  appellate  jurisdiction  of  the 
Supreme  Court  is  entirely  dependent  upon  statute,  the  General  Assembly 
might,  if  it  desired,  deny  to  litigants  a  right  to  a  review  of  such  cases  in  the 
Supreme  Court,  and  might  make  the  decisions  of  the  appellate  court,  in  such 
cases,  final.  Therefore,  it  may  limit  the  appellate  jurisdiction  of  the  Supreme 
Court,  in  such  cases,  either  to  questions  of  law  or  of  fact.''* 

"8  People  V  Siman.   284  111.   28    (1918). 

2»  Schlattweiler  v  St.  Clair  Co..  63  111.  449  (1872);  Peak  v  People,  76  111.  289 
(1875). 

3»  Chicago  &  Alton  Ry.  Co.  v  Fisher,  141  111.  614  (1892);  Freitag  v  U.  S.  T. 
Co..  262  111.  551   (1914);  Courter  v  Simpson  Construction  Co.,  264  111.  488    (1914). 

31  Young  V  Stearns.  91  111.  221  (1878);  Fleischman  v  Walker.  91  111.  318 
(1878). 

32 Millers  Ins.  Co.  v  Peonle.  170  111.  474  (1898);  Case  v  City  of  Sullivan. 
222   111.   56    (1906);   Town  of  Scott  v   Artman,    237   111.    394    (1908). 

s^^Sixby  V  Chicago  City  Ry.  Co.,  260  111.  478  (1913);  Freitag  v  U.  S.  T.  Co.. 
262    111.    551    (1914). 

3*Kerfoot  v  Cromwell  Mound  Co..  115  HI.  502  (1884);  Cliicago  &  Alton 
Ry.  Co.  V  Fisher.  141  111.  614  (1892);  Lake  Shore  Michigan  Southern  Ry.  Co 
V  Richards,   152   111.    59    (1894). 


Article  6,  Section  2  155 

There  appear  to  have  been  no  judicial  interpretations  of  the  phrases 
quoted  above  from  section  11,  "cases  in  whicli  a  franchise,  or  freehold,  or  the 
validity  of  a  statute  is  involved,"  as  they  are  used  in  the  constitution.  How- 
ever, the  construction  placed  upon  these  terms  as  used  in  a  statute  permitting 
such  cases  to  be  taken  direct  to  the  Supreme  Court  for  review,  may  have  a 
hearing  upon  the  meaning  of  the  constitutional  provisions. 

The  word  "involved"  as  used  in  this  statute,  does  not  necessarily  mean 
that  the  proceeding  must  have  been  instituted  for  the  express  purpose  of  de- 
termining the  question  relating  to  a  franchise,  freehold,  or  validity  of  a 
statute."^ 

The  term  "franchise"  in  this  statute,  is  used,  not  in  the  broad,  popular 
sense,  but,  rather,  in  the  strict  legal  sense  of  a  special  privilege,  not  enjoyed 
as  of  common  right,  which  is  conferred  by  the  sovereign  power  or  derived 
from  prescription.  This  privilege  need  not,  however,  be  exclusive.  The 
term  includes  the  power  to  exist  as  a  corporation,^"  the  power  to  exercise 
the  right  of  eminent  domain,"  the  power  to  collect  tolls  on  ferries,  bridges 
and  wharves,""*  the  constitutional  privilege  of  a  portion  of  the  people  to  vote 
for  candidates  for  public  office,^®  and  perhaps  the  power  to  issue  bank  notes.*" 
The  term  has  been  held  not  U>  include  the  privilege  of  a  foreign  corporation 
to  do  business  in  this  state,"  the  privilege  granted  by  a  city  to  use  certain 
streets  in  the  operation  of  a  street  railroad/-  the  privilege  given  by  a  city 
to  run  a  dramshop,"^  or  privileges  such  as  that  of  membership  in  a  private 
corporation,'*  that  of  a  citizen  to  sue  in  certain  cases  in  the  name  of  the  Peo- 
ple on  his  own  relation,'"  or  the  privilege  of  holding  public  office.^" 

A  "freehold"  is  involved,  within  the  meaning  of  the  statute,  in  a  case 
where  the  title  to  a  freehold  estate  in  real  property  is  so  put  in  issue  by  the 
pleadings,  that  the  decision  of  the  case  makes  necessary  a  determination 
of  that  question,  or  where  the  necessary  result  of  a  judgment  or  decree,  such 
as  a  judgment  in  condemnation  proceedings,  is  that  one  party  loses  and  an- 
other gains  a  freehold  estate  in  real  property.  That  is,  the  title  to  the  free- 
hold must  be  directly  and  not  incidentally  affected.*^  Thus,  a  freehold  is  not 
involved  in  a  suit  to  remove  a  cloud  upon  title.*^ 

The  "validity  of  a  statute"  is  not  involved  in  a  case  where  the  determi- 
nation of  that  question  is  not  pertinent  to  a  decision  of  the  case,  as,  for 
example,  in  a  proceeding  to  construe  a  will,  where  it  is  alleged  that  the 
statute  creating  the  corporation  appointed  as  trustee,  is  invalid.'®  It  is  in- 
volved when  plaintiff  in  error  or  appellant,  to  obtain  a  reversal,  must  show 
that  certain  statutes,  if  applicable,  were  passed  as  a  valid  exercise  of  legis- 
lative power,  even  though,  in  view  of  the  other  questions,  it  is  not  neces- 
sary for  the  Supreme  Court  to  determine  that  question  in  order  to  decide 
the    case.''" 

Appeals  and  writs  of  error,  A  statement  of  the  judicial  interpretation 
of  the  constitutional  provisions  relating  to  appeals  to  and  writs  of  error 

«-'C.   &   W.    I.    Ry.   Co.   V   Dunbar.    95   111.    571    (1880).    . 

•'"'People  V  Holtz,  92  111.  426  (1879);  People  v  Continental  Benefit  Ass'n., 
280   111.    113    (1917). 

3'C.  &  W.  I.  Ry.  Co.   V  Dunbar,   95   111.  571    (1880). 

38  People  V  Holtz,  92   111.  426   (1879). 

38  People   V  Holtz,    92   111.   426    (1879);   U.   S.   v  Hrasky,    240   111.    560    (1909). 

^«C.   &   W.    I.    Ry.   Co.   V   Dunbar.    95   111.    571    (1880). 

"People   V  Continental   Benefit   Ass'n..    280   111.    11,3    (1917). 

"C.   &   W.    I.  'Ry.    Co.   V  Dunbar.   95   111.    571    (1880). 

« People   V   City   of  Cbicajro.    257    111.    380    (1913). 

"*  Board    of    Trade    v    People,    91    111.    80    (1878). 

^"Hesing-   v    Attorney    General.    104    111.    292    (1882). 

"«  People  V  Holtz,   92  111..  426    (1879;  People  v  Welch.   260  111.   532    (1913). 

*'vSkinner  v  Lake  View  Ave  Co..  57  111.  151  (1870);  Perry  v  Bozarth,  198  111. 
328  (1902);  Town  of  Mattoon  v  Elliott.  259  111.  72  (1913);  see  discussion  of 
this  same  ouestion  by  E.  M.  Liessmann  in  the  Illinois  Law  R:eview,  VIII.  pp. 
176-86:    XIV,    pp.    223-25. 

^«Hockett   V   Logran.    257    111.    326    (1913). 

"9  Dean  v  Northern  Trust  Co.,   259  111.  148    (1913). 

f"*  Rittenhouse  &  Embree  Co.  v  Brown,  254  111.  549  (1912);  Barrett  Mfg". 
Co.    v   City   of   Chicago.    259    111.    578    (1913). 


156  Article  6,  Section  2 

from  the  Supreme  Court,  necessarily  involves  a  consideration  of  sections 
2,  8,  11  and  19  of  this  article.  These  sections  contain  the  following  pro- 
visions: 

Sec.  2.  "The  Supreme  Court  shall  .  .  .  have  original  jurisdiction 
in  cases  relating  to  the  revenue,  in  mandamus  and  habeas  conms,  and  ap- 
pellate jurisdiction  in  all  other  cases." 

Sec.  8.  "Appeals  and  writs  of  error  may  be  taken  to  the  Supreme  Court 
held  in  the  grand  division  in  which  the  case  is  decided,  or  by  consent  of  the 
parties,  to  any  other  grand  division." 

Sec.  11.  "After  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-four,  inferior  appellate  courts,  of  uniform  organization  and  juris- 
diction, may  be  created  in  districts  formed  for  that  purpose,  to  which  such 
appeals  and  writs  of  error  as  the  General  Assembly  may  provide,  may  be 
prosecuted  from  circuit  and  other  courts,  and  from  which  appeals  and  writs 
of  error  shall  lie  to  the  Supreme  Court,  in  all  criminal  cases,  and  cases  in 
which  a  franchise,  or  freehold,  or  the  validity  of  a  statute  is  involved,  and 
in  such  other  cases  as  may  be  provided  by  law." 

Sec.  19.  "Appeals  and  writs  of  error  shall  be  allowed  from  final  determi- 
nations of  county  courts,  as  may  be  provided  Iw  law." 

It  has  been  held  that  none  of  these  constitutional  provisions,  in  the 
absence  of  further  legislation,  grants  to  litigants  a  right  to  an  appeal,  in 
the  strict  sense,  as  distinguished  from  other  methods  of  obtaining  a  review, 
to  the  Supreme  Court.  An  appeal,  in  that  sense,  is  entirely  a  creature  of 
statute  and  until  legislation  has  been  enacted  granting  a  right  to  an  appeal 
and  prescribing  the  conditions  upon  which  it  shall  be  available,  an  appeal 
does  not  lie.'^  (See  discussion  article  6,  section  12,  subheading,  "Appellate 
jurisdiction".) 

The  remainder  of  the  discussion,  under  this  subheading,  will  be  devoted 
to  the  subject  of  writs  of  error.  It  has  already  been  suggested  (see  discus- 
sion preceding  subheading,  "Appellate  jurisdiction")  that  before  the  ap- 
pellate courts  were  established,  in  1877,  the  Supreme  Court  had  construed 
section  2  of  this  article  as  vesting  in  that  court  appellate  jurisdiction  in  all 
cases  other  than  those  in  which  it  was  given  original  jurisdiction.  Similarly, 
it  was  then  held  that  section  2,  in  connection  with  sections  8  and  19,  made 
a  writ  of  error,  from  the  Supreme  Court  to  the  trial  court,  a  constitutional 
writ  of  right  in  every  case,  whether  it  was  a  case  known  to  the  common 
law,  or  a  statutory  proceeding  conducted  according  to  the  course  of  the 
common  law,  or  a  statutory  proceeding  conducted  in  a  summary  manner,  such 
as  a  condemnation  proceeding.  That  is,  the  constitution  was  construed  to  have 
extended  the  common  law  rule  under  which  a  writ  of  error  was  a  writ  of 
right  only  in  common  law  cases  or  in  statutory  proceedings  conducted  ac- 
cording to  the  course  of  the  common  law.^^  However,  it  is  now  held  that, 
construing  section  2  with  section  11  of  this  article,  there  are  only  four 
cases  in  which  the  constitution  confers  appellate  jurisdiction  upon  the 
Supreme  Court,  namely,  "criminal  cases,  and  cases  in  which  a  freehold, 
a  franchise  or  the  validity  of  a  statute  is  involved."  In  all  other  cases, 
the  appellate  jurif;diction  of  the  Supreme  Court  is  entirely  dependent  upon 
statute.  (See  discussion  preceding  subheading,  "Appellate  jurisdiction"). 
Similarly,  it  is  now  held  that  under  sections  2,  8,  11  and  19  of  this  article,  it 
is  only  in  these  four  classes  of  cases  that  there  is  a  constitutional  right  to  a 
writ  of  error  from  the  Supreme  Court.  In  all  other  cases,  that  right  depends 
upon  the  common  law  as  modified  by  statute. 

However,  this  constitutional  right  to  a  writ  of  error  from  the  Supreme 
Court  in  criminal  cases,  and  cases  in  which  a  franchise,  a  freehold  or  the 
validity     of     a     statute     is     involved,     is'    not     necessarily     that     of     a 


"I  Smith  v  People.  98  111.  407  (1881);  Gallagrher  v  People,  207  111.  247  (1904): 
Drainage  Coinmissioners  v  Harms,  238  111.  414  (1909);  Andrews  v  Rumsey,  75 
111.    598    (1874). 

•"•"  Schlaftweilfr  v  St.  riair  (^ountv.  6S  111.  449  (1872):  St.  L.  .^  S.  E.  Ry. 
Co.  V  Lux,  63  111.  523  (1872);  Peak  v  People,  ir.  111.  289  (1875);  Haines  v  People, 
97    111.    161    (1880). 


Article  6,  Section  2  157 

right  to  a  writ  of  error  direct  from  the  Supreme  Court  to  the 
trial  court.  As  has  been  suggested,  (see  discussion  preceding  sub- 
heading, "Appellate  jurisdiction"),  the  General  Assembly  may  require  any 
one  or  more  or  all  of  these  cases  to  be  taken  first  to  the  appellate  court.'" 
On  the  other  hand  when  one  of  these  four  cases,  such  as  a  criminal  case,  is 
required  to  be  taken  first  to  the  appellate  court,  a  writ  of  error  from  the 
Supreme  Court  to  the  appellate  court  to  obtain  a  review  of  the  latter  courts' 
decision,  is  a  constitutional  writ  of  right  and  must  be  allowed  when 
claimed.'*  Moreover,  it  has  been  intimated  by  the  Supreme  Court  that  the 
provisions  of  section  11  of  this  article  deny  to  the  General  Assembly  the 
power  to  provide  for  any  method,  other  than  that  of  writ  of  error  or  appeal, 
of  bringing  one  of  these  four  classes  of  cases  up  from  the  appellate  court 
to  the  Supreme  Court,  for  review.  Nevertheless,  the  General  Assembly 
may  provide  that  a  writ  of  certiorari  may  issue  from  the  Supreme  Court 
to  the  appellate  court  for  the  purpose  of  determining  whether  or  not  one  of 
these  four  classes  of  cases  merits  review,  when  the  writ  actually  awarded 
to  bring  up  the  record,  after  the  case  is  deemed  worthy  of  review,  is  a 
writ  of  error."^ 

It  should  be  noted  that  a  constitutional  right  to  a  writ  of  error  does 
not  include  a  right  to  have  the  writ  of  error  made  a  supersedeas.^ 

Although  sections  8  and  19  of  this  article  have  often  been  referred  to 
by  the  court,  the  principal  basis  for  the  determination  of  the  question 
as  to  when  a  writ  of  error  from  the  Supreme  Court  was  available,  in  the 
great  majority  of  the  cases,  has  been,  not  the  constitution,  but  the  common 
law,  as  modified  by  statute.  That  is,  the  constitutional  provisions  authorize 
the  use  of  writs  of  error  as  a  means  of  obtaining  a  review  of  cases  by  the 
Supreme  Court,  but,  except  in  the  four  classes  of  cases  of  which  mention 
has  been  made,  the  actual  availability  of  a  writ  of  error  in  a  particular  case 
has  been  determined,  not  by  the  constitution,  but  by  the  common  law, 
as  extended  or  changed  by  legislation." 

Very  little  has  been  said,  in  this  note,  with  reference  to  sections  8  and 
19  of  this  article.  Section  S  appears  to  have  been  intended  merely  to  require 
that  appeals  and  writs  of  error,  which  were  available  because  of  some  body 
of  law  other  than  that  section,  should  be  taken  to  the  Supreme  Court  in  the 
particular  grand* division  in  which  the  trial  court  was  located,  unless  the  par- 
ties agreed  otherwise.  That  is,  that  section  probably  was  not  intended  to 
have  any  bearing  upon  the  question  as  to  when  a  writ  of  error  from  the  Su- 
preme Court  was  or  was  not  available  in  a  particular  case.  Rather,  it  appears 
to  have  been  inserted  in  the  constitution  for  the  purpose  of  directing  to 
which  grand  division  cases  should  be  sent  for  review.  The  three  grand  divi- 
sions, however,  were  abolished,  the  state  as  a  v/hole  constituted  one  grand  di- 
vision, and  the  Suprem.e  Court  required  to  meet  at  Springfield,  by  an  act  of 
1897.'^  Perhaps  it  may  be  said  that  since  the  enactment  of  that  statute,  section 
8  is  inoperative.  There  has  been  but  one  case  in  which  the  Supreme  Court  has 
really  discussed  the  meaning,  insofar  as  writs  of  error  are  concerned,  of  sec- 
tion 19.  In  that  case  the  court  said:  "Plainly,  this  does  not  confer  the  right 
to  a  writ  of  error  from  this  court  in  all  cases  decided  by  the  county  court. 
Whether  the  case  shall  be  taken,  by  appeal  or  by  writ  of  error,  to  this  court, 
or  to  some  other  court,  must  be  provided  by  law.  It  is  but  a  direction  to  the 
General  Assembly  to  prescribe,  by  law,  how  appeals  and  writs  of  error  shall 
be  allowed  from  final  determinations  of  county  courts     .      .      ."°^ 


5"  Young-  V  Stearns.  91  111.  221  (1878);  George  v  George,  2.50  III.  251  (1911); 
Public   Utilities    Commission   v   C.   &   W.    T.    Rv.   Co.,    275    111.    555    (1916). 

^*  Smith  v  People,   98  111.  407    (1881);  Gallagher  v  People,  207  111.  247    (1904). 

•■»«Freitag  v   U.    S.   Y.    Co.,.  262    111.    551    (1914). 

s"  Public  Utilities  Commission  v  C.  &  W.   T.  Ry.  Co..   275  111.   555    (1916^. 

•^^  Haines  v  People.  97  111.  161  (1880);  Hart  Bros,  v  West  Chicago  Park 
Commissioners,  186  111.  464  (1900);  George  v  George,  250  111.  251  (1911); 
Sweeney  v  Chicago  Telephone  Co..  212  111.  475  (1904);  Peak  v  Peope,  76  111.  289 
(1875);  Kingsbury  v  Sperry.  119  111.  279  (1887);  Loomis  v  Horlson,  224  111.  147 
(1906);  Hall  v  Thode,    75   111.   173    (1874). 

^^Hurd's    Revised    Statutes,    1917.    chap;    37.    sees.    2-3d. 

^"Kingsbury  v   Sperry,   119   HI,   279,   282    (1887). 


158  Article  6,  Sections  3-5 

Section  3.  No  person  shall  be  eligible  to  the  office  of  judge  of 
the  Supreme  Court  unless  he  shall  be  at  least  thirty  years  of  age, 
and  a  citizen  of  the  United  States,  nor  unless  he  shall  have  resided 
in  this  State  five  years  next  preceding  his  election,  and  be  a  resident 
of  the  district  in  which  he  shall  be  elected. 


Section  4.  Terms  of  the  Supreme  Court  shall  continue  to  be 
held  in  the  present  grand  divisions  at  the  several  places  now  pro- 
vided for  holding  the  same ;  and  until  otherwise  provided  by  law, 
one  or  more  terms  of  said  court  shall  be  held,  for  the  Northern 
Division,  in  the  City  of  Chicago,  each  year,  at  such  times  as  said 
court  may  appoint,  whenever  said  city  or  the  county  of  Cook  shall 
provide  appropriate  rooms  therefor,  and  the  use  of  a  suitable  library, 
without  expense  to  the  State.  The  judicial  divisions  may  be  altered, 
increased  or  diminished  in  number,  and  the  times  and  places  of 
holding  said  court  may  be  changed  by  law. 


The  three  grand  divisions  were  abolished,  the  state  as  a  whole  consti- 
tuted one  grand  division,  and  the  Supreme  Court  was  required  to  sit  at 
Springfield,  by  an  act  of  1897.**' 


Section  5.  The  present  grand  divisions  shall  be  preserved,  and 
be  denominated  Southern,  Central  and  Northern,  until  otherwise 
provided  by  law.  The  State  shall  be  divided  into  seven  districts  for 
the  election  of  judges,  and,  until  otherwise  provided  by  law,  they 
shall  be  as  follov/s : 

First  District — The  counties  of  St.  Clair,  Clinton,  Washington, 
Jefferson,  Wayne,  Edwards,  Wabash,  White,  Hamilton,  Franklin, 
Perry,  Randolph,  Monroe,  Jackson,  Williamson,  Saline,  Gallatin. 
Hardin,  Pope,  Union,  Alexander,  Pulaski  and  Massac. 

Second  District — The  counties  of  Madison,  Bond,  Marion,  Clay, 
Richland,  Lawrence,  Crawford,  Jasper,  Effingham,  Fayette,  Mont- 
gomery, Macoupin,  Shelby,  Cumberland,  Clark,  Greene,  Jersey,  Cal- 
houn and  Christian. 

Third  District — The  counties  of  Sangamon,  Macon,  Logan,  De- 
witt,  Piatt,  Douglas,  Champaign,  Vermilion,  McLean,  Livingston, 
Ford,  Iroquois,  Coles,  Edgar,  Moultrie  §nd  Tazewell. 

Fourth  District — The  counties  of  Fulton,  McDonough,  Han- 
cock, Schuyler,  Brown,  Adams,  Pike,  Mason,  Menard,  Morgan,  Cass 
and  Scott. 

Fifth  District — The  counties  of  Knox,  Warren,  Henderson, 
Mercer,  Henry,  Stark,  Peoria,  Marshall,  Putnam,  Bureau,  La'Salle, 
Grundy  and  Woodford. 

«o  Kurd's  Revised  Statutes,  1917,  Chap.  37,  sees.  2-3d. 


Article  6,  Section  6  159 

Sixth  District — The  counties  of  Whiteside,  Carroll,  Jo  Daviess, 
Stephenson,  Winnebago,  Boone,  McHenry,  Kane,  Kendall,  De- 
Kalb,  Lee,  Ogle  and  Rock  Island. 

Seventh  District — The  counties  of  Lake,  Cook,  Will,  Kankakee 
and  DuPage. 

The  boundaries  of  the  districts  may  be  changed  at  the  session  of 
the  General  Assembly  next  preceding  the  election  for  judges  therein, 
and  at  no  other  time ;  but  whenever  such  alterations  shall  be  made, 
the  same  shall  be  upon  the  rule  of  equality  of  population,  as  nearly 
as  county  boundaries  will  allow ;  and  the  districts  shall  be  composed 
of  contiguous  counties ;  in  as  nearly  compact  form  as  circumstances 
will  permit.  The  alteration  of  the  districts  shall  not  affect  the  tenure 
of  office  of  any  judge. 


Grand  divisions.  The  three  grand  divisions  were  abolished,  the  state 
as  a  whole  constituted  one  grand  division,  and  the  Supreme  Court  was  re 
quired  to  sit  at  Springfield,  by  an  act  of  1897.®^ 


Changes  in  Supreme  Court  districts.  Under  the  provisions  of  section 
6  of  this  article,  five  Supreme  Court  judges  are  elected  at  one  time,  one  at 
another  time,  and  one  at  still  another  time.  (See  discussion  article  6,  sec 
tion  6).. 

It  has  been  held  that  the  General  Assembly  is  empowered  by  the  provi 
sions  of  the  last  paragraph  of  this  section  and  those  of  section  6  of  this  arti- 
cle, construed  together,  to  change  the  boundaries  of  a  particular  Supreme 
Court  district  at  the  session  which  convenes  next  preceding  the  election  of 
a  judge  in  that  district,  even  though  that  change  results  incidentally  in  the 
alteration  of  the  boundaries  of  other  districts  in  which  no  judges  are  to  be 
elected  that  year.  Moreover,  the  General  Assembly  is  authorized  by  these  two 
sections  to  change  the  boundaries  of  any  one  or  more  of  the  five  districts  in 
which  judges  of  the  Supreme  Court  are  elected  at  the  same  time,  at  the  session 
which  convenes  next  preceding  that  election,  even  though  such  change  or 
changes  may  result  incidentally  in  the  alteration  of  the  boundaries  of  other 
districts  in  which  no  judges  are  to  be  elected  that  year.  The  Supreme  Court 
has  denied  that  the  section  under  consideration  necessarily  requires  all 
seven  districts  to  be  changed  at  the  time  of  the  election  pf  the  five  judges 
The  Supreme  Court  will  not  review  the  discretion  of  the  General  Assembly 
as  to  the  equality  of  population,  or  the  compactness  or  contiguity  of  the 
territory  of  the  new  districts,  if  it  can  see  that  any  attempt  at  all  was  made 
to  comply  with  these  requirements.*'^  (See  article  6,  section  13;  and  discus 
sion,  article  4,  section  6.) 

(As  to  whether  an  act  creating  new  circuits  or  changing  boundaries  of 
circuits  may  be  made  to  go  into  effect  prior  to  the  first  day  of  July,  without 
the  necessity  of  an  emergency  clause  and  a  two-thirds  vote,  see  discussion 
article  4,  section  13,  subheading,  "Date  of  going  into  effect.")  ' 


Section  6.  At  the  time  of  voting  on  the  adoption  of  this  Con- 
stitution, one  judge  of  the  Supreme  Court  shall  be  elected  by  the 
electors  thereof,  in  each  of  said  districts  numbered  two,  three,  six, 


"  Kurd's 'Revised  Statutes  1917,  ohap.  37.  sees.  2-3d, 
«^  People    v    Rose,    203    111.    46    (1903). 


160  Article  6,  Section  7 

and  seven,  who  shall  hold  his  office  for  the  term  of  nine  years  from 
the  first  Monday  of  June,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy.  The  term  of  office  of  judges  of  the  Supreme 
Court,  elected  after  the  adoption  of  this  Constitution,  shall  be  nine 
years;  and  on  the  first  Monday  of  June  of  the  year  in  which  the 
term  of  any  of  the  judges  in  office  at  the  adoption  of  this  Constitu- 
tion or  of  the  judge  then  elected,  shall  expire,  and  every  nine 
years  thereafter,  there  shall  be  an  election  for  the  successor  or  suc- 
cessors of  such  judges,  in  the  respective  districts  wherein  the  term 
of  such  judges  shall  expire.  The  Chief  Justice  shall  continue  to  act 
as  such  until  the  expiration  of  the  term  for  which  he  was  elected, 
after  which  the  Judges  shall  choose  one  of  their  number  Chief  Jus- 
tice. 


On  May  13,  1870,  when  the  Constitution  of  1870  was  adopted  by  the  con- 
stitutional convention,  the  Supreme  Court  consisted  of  three  judges.  The 
term  of  one  of  these  three  judges  expired  on  the  first  Monday  in  June, 
1870.  Section  2  of  article  6  of  the  new  constitution  provided  that  "The  Su- 
preme Court  shall  consist  of  seven  judges."  The  section  under  considera- 
tion provided  for  the  election  of  the  four  new  judges  on  July  2,  1870,  when 
the  question  of  the  ratification  of  the  new  constitution  was  submitted  to  the 
people.  (See,  also,  section  7  of  the  schedule.)  Five  judges,  therefore, 
were  elected  in  1870,  and,  pursuant  to  this  section,  five  judges  are  to  be  elected 
every  nine  years  thereatter,  on  the  first  Monday  in  June.  The  terms  of  the 
other  two  judges  in  office  at  the  time  of  the  adoption  of  the  constitution  of 
1870  by  the  constitutional  convention,  expired,  respectively,  in  1873  and 
1876.  Therefore,  under  the  provisions  of  this  section,  one  Supreme  Court 
judge  is  to  be  elected  every  nine  years  after  1873  and  1876,  respectively,  on 
the  first  Monday  in  June.  Thus,  elections  for  judges  of  the  Supreme  Court 
are  held  every  three  years.  The  provisions  of  the  present  statute  are  as  fol- 
lows: "The  judges  of  the  Supreme  Court  shall  hereafter  be  elected  as 
follows,  to-wit:  In  the  first,  second,  third,  sixth  and  seventh  districts  on 
the  first  Monday  of  June,  in  the  year  of  our  Lord  1879,  and  every  nine  years 
thereafter.  In  the  fourth  district,  on  the  first  Monday  of  June,  in  the  year 
of  our  Lord  1876,  and  every  nine  years  thereafter.  In  the  fifth  district,  on 
the  first  Monday  of  June,  in  the  year  of  our  Lord  1873,  and  every  nine  years 
thereafter."  ^^ 


Section  7.  From  and  after  the  adoption  of  this  Constitution, 
the  judges  of  the  Supreme  Court  shall  each  receive  a  salary  of  four 
thousand  dollars  per  annum,  payable  quarterly,  until  otherwise  pro- 
vided by  law.  And  after  said  salaries  shall  be  fixed  by  law,  the  sal- 
aries of  the  judges  in  office  shall  not  be  increased  or  diminished  dur- 
ing the  terms  for  which  said  judges  shall  have  been  elected. 


(As  to  the  meaning  of  the  last  sentence  of  this  section,  see  discussion 
article  4,  section  21,  subheading  "Judicial  officers.") 


c»  People    V   Eose,    203    111.    46    (1903);    Kurd's   Revised    Statutes,    1917,    chap 
46,  sec.  10. 


Article  6,  Sections  8-11  161 

Section  8.  Appeals  and  writs  of  error  may  be  taken  to  the  Su- 
preme Court,  held  in  the  grand  division  in  which  the  case  is  decided, 
or,  by  consent  of  the  parties,  to  any  other  grand  division. 


(See  discussion  article  6,  section  2,  subheading,  "Appeals  and  writs  of 
error.") 


Section  9.  The  Supreme  Court  shall  appoint  one  reporter  of 
its  decisions,  who  shall  hold  his  office  for  six  years,  subject  to  re- 
moval by  the  Court. 


Section  10.  At  the  time  of  the  election  for  representatives  in 
the  General  Assembly,  happening  next  preceding  the  expiration  of 
the  terms  of  office  of  the  present  clerks  of  said  court,  one  clerk  of 
said  court  for  each  division  shall  be  elected,  whose  term  of  office 
shall  be  six  years  from  said  election,  but  who  shall  not  enter  upon 
the  duties  of  his  office  until  the  expiration  of  the  term,  of  his  prede- 
cessor, and  every  six  years  thereafter  one  clerk  of  said  court  for 
each  division  shall  be  elected. 


The  three  grand  divisions  were  abolished,  the  state  constituted  one 
grand  division,  the  Supreme  Court  required  to  sit  at  Springfield,  and  the 
election  of  but  one  Supreme  Court  clerk  provided  for,  by  an  Act  of  1897.^ 


Section  11.  After  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy-four,  inferior  Appellate  Courts,  of  uniform  or- 
ganization and  jurisdiction,  may  be  created  in  districts  formed  for 
that  purpose,  to  which  such  appeals  and  writs  of  error  as  the  Gen- 
eral Assembly  may  provide,  may  be  prosecuted  from  Circuit  and 
other  courts,  and  from  which  appeals  and  writs  of  error  shall  lie  to 
the  Supreme  Court,  in  all  criminal  cases,  and  cases  in  which  a  fran- 
chise, or  freehold,  or  the  validity  of  a  statute  is  involved,  and  in 
such  other  cases  as  may  be  provided  by  law.  Such  Appellate  Courts 
shall  be  held  by  such  number  of  Judges  of  the  Circuit  Courts,  and  at 
such  times  and  places,  and  in  such  manner,  as  may  be  provided  by 
law;  but  no  Judge  shall  sit  in  review  upon  cases  decided  by  him; 
nor  shall  said  Judges  receive  any  additional  compensation  for  such 
services. 


(As  to  the  meaning  of  the  clause  of  this  section,  "and  from  which  ap- 
peals and  writs  of  error  shall  lie  to  the  Supreme  Court,  in  all  criminal  cases, 


•"Kurd's  Revised  Statutes  1917,  chap.  37,   sees.   2-3d. 


162  Article  6,  Section  12 

and  cases  in  which  a  franchise,  or  freehold,  or  the  validity  of  a  statute  is 
involved,"  see  discussion  article  6,  section  2,  subheadings,  "Appellate  juris- 
diction," and  "Appeals  and  writs  of  error.") 


Branch  Appellate  Courts.  The  General  Assembly  is  not  prohibited  by 
the  provisions  of  this  section  from  creating  branch  appellate  courts,  even 
though  they  are  auxiliary  to  the  main  appellate  courts.  The  organization, 
jurisdiction  and  districts  of  these  branch  courts,  however,  must  comply  with 
the  requirements  of  this  section.*^^ 


Jurisdiction.  The  appellate  courts  have  no  original  jurisdiction  in  any 
case.  They  are  merely  intermediate  courts  of  review,  and  have  appellate 
jurisdiction  only.  Therefore,  the  appellate  courts  may  not  be  empowered 
to  issue  writs  of  mandamus,''*^  prohibition""  or  certiorari,'^^  except  in  aid  of 
their  appellate  jurisdiction.  Nor,  in  the  opinion  of  the  Attorney  General, 
may  an  appellate  court  issue  a  summons  in  garnishment,  for  to  do  so  would 
be  to  exercise  an  original  jurisdiction."" 


Trial  judge  sitting  in  review.  In  the  case  of  Provident  Assurance 
Society  v  King,^^  the  facts  were  these:  The  case  had  been  assigned  by  the 
appellate  court  for  the  first  district,  to  the  branch  appellate  court,  in  that 
district,  for  review.  Judge  Stein,  who  had  heard  the  case  below,  in  the 
circuit  court,  had  become  a  justice  of  that  branch  court,  and  for  that  reason, 
a  motion  was  made  to  have  the  case  reassigned  to  the  main  appellate  court. 
The  motion  was  not  allowed.  The  Supreme  Court  held  that  the  provision  of 
the  section  of  the  constitution  under  consideration,  "but  no  judge  [of  a 
circuit  court]  shall  sit  in  review  upon  cases  decided  by  him,"  prohibited 
Judge  Stein  from  taking  part  in  the  hearing  or  decision  of  the  case  on  appeal, 
and  that,  for  the  reason  that  the  party  was  entitled  to  a  hearing  by  a  full 
court,  it  was  error  not  to  reassign  the  case,  when  such  a  court,  namely,  the 
main  appellate  court,  was  available  in  that  district. 


Section  12.  The  Circuit  Courts  shall  have  original  jurisdiction 
of  all  causes  in  law  and  equity,  and  such  appellate  jurisdiction  as 
is  or  may  be  provided  by  law,  and  shall  hold  two  or  more  terms  each 
year  in  every  county.  The  terms  of  office  of  Judges  of  Circuit 
Courts  shall  be  six  years. 


Original  jurisdiction.  The  term  "causes  in  law  and  equity"  has  been 
held  to  include  the  "prosecution  of  every  claim  or  demand  in  a  court  of  jus- 
tice which  was  known,  at  the  adoption  of  the  constitution,  as  an  action  at 
law  or  a  suit  in  chancery.  It  also  includes  all  actions  since  provided  for, 
in  which  personal  or  property  rights  are  involved,  which  belong  to  the  same 
class  or  are  of  the  same  nature  as  previously  existing  actions  at  law  or  in 
equity.  Such  are  cases  where  the  legislature  creates  a  new  statutory  remedy 
for  the  recovery  of  property  or  for  damages  occasioned  by  the  infringement 


8=  Birkenneld  v  People,  191  111.  272    (1910). 

«<»Hawes  v   Peoplfe,    124    111.    560    (1888);    People   v  Hoyne,    262    111.    82    (1914). 

•''People  v  Circuit  Court,   169   111.   201    (1897). 

6«  People  V  Hoyne,   262  111.   82    a914);   People  v  Pam,   276   111.   181    (1916). 

«» Report   Attorney    General    1916,   p.    671. 

TO  Provident   Assurance   Society   v   King-,    216    111.    416    (1905). 


Article  6,  Section  13  163 

of  a  right.''  The  term  "causes  in  law  and  equity"  does  not,  therefore,  in- 
clude election  contests."  However,  it  has  been  held  that  the  General  Assem- 
bly is  not  prohibited  from  conferring  jurisdiction  upon  circuit  courts  to  hear 
election  contests,'^  and  it  has  been  held  that  section  4  of  article  10  of  the 
constitution,  by  implication,  confers  jurisdiction  upon  the  circuit  courts  to 
hear  election  contests  relating  to  the  removal  of  county  seats.''*  (See  discus- 
sion article  10,  section  4.) 

The  General  Assembly  is  without  power  to  deprive  the  circuit  courts 
of  this  original  jurisdiction  in  any  cause  at  law  or  in  equity,  as  for  instance, 
by  conferring  exclusive  jurisdiction  in  criminal  cases  or  the  enforcement  of 
trusts,  upon  other  courts.  It  may,  however,  confer  concurrent  jursdiction 
in  such  cases  upon  other  courts."  Section  26  of  this  article  merely  con- 
ferred concurrent  jurisdiction  in  criminal  and  quasi-crimmal  matters  upon 
the  criminal  court  of  Cook  County  and  so  did  not  operate  to  divest  the  cir- 
cuit or  superior  court  of  Cook  county  of  jurisdiction  in  such  matters.^^ 

The  circuit  courts  take  jurisdiction  of  so-called  statutory  "appeals"  from 
non-judicial  bodies,  such  as  highway  commissions,  only  when  they  have  orig- 
inal jurisdiction  over  the  subject  matter  involved,  and  not  in  the  exercise 
of  any  appellate  jurisdiction,  for  there  cannot  be  an  appeal,  in  the  strict  sense 
of  the  term,  from  a  non-judicial  body.^**  (See  discussion  article  6,  section  2, 
subheading,  "Original  jurisdiction.") 


Appellate  jurisdiction.  The  circuit  courts  have  no  appellate  jurisdic- 
tion by  virtue  of  the  section  under  consideration,  in  the  absence  of  enabling 
legislation.'^  (See  discussion  article  6,  section  2,  subheading,  "Appeals  and 
writs  of  error.") 


Terms  of  office  of  judges.  The  General  Assembly  is  prohibited  by 
this  section  from  fixing  the  term  of  ofRce  for  which  circuit  judges  are  to  be 
elected  at  any  period  other  than  one  of  six  years,  even  though,  in  a  particu- 
lar case,  the  judges  are  the  first  to  be  elected  after  an  increase  in  the  number 
of  circuit  judges  in  Cook  county.'*  Apparently,  however,  section  15  of  this 
article  authorized  the  General  Assembly  to  provide  for  the  election  of  addi- 
tional judges  at  the  time  of  the  adoption  of  the  alternative  system  of  judicial 
circuits  therein  provided  for,  for  terms  of  less  than  six  years  each.'®  The 
regular  terms  of  office  of  circuit  judges  have  been  held  to  begin  upon  the 
day  of  election.^"  (See  discussion  article  6,  section  14,  subheading,  "Judicial 
elections.") 


Section  13.  The  State,  exclusive  of  the  county  of  Cook  and 
other  counties  having  a  population  of  one  hundred  thousand,  shall 
be  divided  into  judicial  circuits,  prior  to  the  expiration  of  the  terms 
of  office  of  the  present  judges  of  the  Circuit  Courts.  Such  circuits 
shall  be  formed  of  contiguous  counties,  in  as  nearly  compact  form 

'1  Douglas    V    Hutchinson,    183    111.    323     (1899). 

73  Kerr   v    Flewelling-,    235    111.    326    (1908). 

73  Douglas    V    Hutchinson,    183    111.    323    (1899). 

7*  Myers  v  People,  67  111.  503  (1873);  Mapes  v  People,  69  111.  523  (1873); 
Wilson  V  People,  94  111.  426  (1880);  Howell  v  Moores,  127  111.  67  (1889);  Frackel- 
ton  v   Masters,   249   111.    30    (1911). 

'^Berkowitz  v  Lester,   121   111.   99    (1887). 

'•'Drainage  Commissioners  v  Harms,   238  111.  414  1909). 

■'City  of  Aurora  v  Schoeberlein,  230  111.  496  (1907);  Maxwell  v  People, 
189    111.    546    (1901). 

78  People  V  Knopf,   198   111.   340    (1902). 

7»  People  V  Wall,   88     [11.   75    (1878);   People   v  Knopf.    198   111.   340    (1902). 

8»  People   v    Sweitzer.    280    111.    436    (1917). 


164  Article  6,  Section  14 

and  as  nearly  equal  as  circumstances  will  permit,  having  due  regard 
to  business,  territory  and  population,  and  shall  not  exceed  in  number 
one  circuit  for  every  one  hundred  thousand  of  population  in  the 
State.  One  judge  shall  be  elected  for  each  of  said  circuits  by  the 
electors  thereof.  New  circuits  may  be  formed  and  the  boundaries  of 
circuits  changed  by  the  General  Assembly,  at  its  session  next  pre- 
ceding the  election  for  circuit  judges,  but  at  no  other  time:  Pro- 
vided, that  the  circuits  may  be  equalized  or  changed  at  the  first 
session  of  the  General  Assembly,  after  the  adoption  of  this  Constitu- 
tion. The  creation,  alteration  or  change  of  any  circuit  shall  not  ef- 
fect the  tenure  of  office  of  any  judge.  Whenever  the  business  of  the 
Circuit  Court  of  any  one,  or  of  two  or  more  contiguous  counties, 
containing  a  population  exceeding  fifty  thousand,  shall  occupy  nine 
months  of  the  year,  the  General  Assembly  may  make  of  such 
county,  or  counties,  a  separate  circuit.  Whenever  additional  cir- 
cuits are  created,  the  foregoing  limitation  shall  be  observed. 

(See  discussion  article  6,  section  15). 


Sectior  14.  The  General  Assembly  shall  provide  for  the  times 
of  holding  court  in  each  county ;  which  shall  not  be  changed,  except 
by  the  General  Assembly  next  preceding  the  general  election  for 
judges  of  said  courts;  but  additional  terms  may  be  provided  for  in 
any  county.  The  election  for  judges  of  the  Circuit  Courts  shall  be 
held  on  the  first  Monday  in  June,  in  the  year  of  our  Lord  one  thous- 
and eight  hundred  and  seventy-three,  and  every  six  years  thereafter. 


Time  of  holding  court.  The  Supreme  Court  has  held  that,  under  this 
section,  the  General  Assembly  may  prescribe  the  time  for  holding  the  circuit 
court  in  a  particular  county,  in  an  act  applicable  only  to  that  one  county .^^ 
The  only  General  Assembly  which  has  the  power  to  change  the  time  of  hold- 
ing court  is  that  which  convenes  just  prior  to  the  judicial  election.  Any 
General  Assembly,  however,  may  provide  for  additional  terms  of  court  in  any 
county.^^ 


Judicial  elections.  This  section  prohibits  the  General  Assembly  from 
fixing  any  time  other  than  that  specified,  for  the  election  of  circuit  judges, 
even  though  in  a  particular  case,  they  are  the  first  to  be  elected  after  an  in- 
crease in  the  number  of  circuit  judges  in  Cook  county.*^  Apparently,  how- 
ever, this  rule  did  not  apply  to  the  first  election  of  judges  after  the  adoption 
of  the  alternative  system  provided  for  by  section  15  of  this  article.  Nor 
does  it  apply  to  the  election  of  judges  of  the  superior  court  of  Cook  County.**^ 
(See  discussion  article  6,  section  12,  subheading,  "Terms  of  office  of 
judges.") 


"Karnes  v  People,   73  111.  274   (1874);  City  of  Mt.  Vernon  v  Fire  Brick  Co.» 
204   111.   32    (1903). 

s^Kepley  v  People,  123  111.  367  (1888). 
s^Kepley  v  People,  123  111.  367  (1888). 
8*  People  V  Wall,  88  111.  75  (3  878);  People  v  Knopf,  198  111.  340   (1902). 


Article  6,  Sections  15,  16  165 

Section  15.  The  General  Assembly  may  divide  the  State  into 
judicial  circuits  of  greater  population  and  territory,  in  lieu  of  the 
circuits  provided  for  in  section  thirteen  of  this  article,  and  provide 
for  the  election  therein,  severally,  by  the  electors  thereof,  by  general 
ticket  of  not  exceeding  four  judges,  who  shall  hold  the  circuit 
courts  in  the  circuit  for  which  they  shall  be  elected,  in  such  manner 
as  may  be  provided  by  law. 


Adoption  of  alternative  system.  The  Supreme  Court  held,  in  the  case 
of  People  V  Wall,^  that  the  alternative  system  of  judicial  circuits  provided 
for  by  this  section  could  be  adopted  by  the  General  Assembly,  in  lieu  of  the 
system  provided  for  by  section  13  of  this  article,  at  any  time.  This  alterna- 
tive system  was  adopted  in  1877.  (As  to  the  first  judges  elected  under  this 
plan,  see  discussion  article  6,  section  12,  subheading,  "Terms  of  office  of 
judges;"  article  6,  section  14,  subheading,  "Judicial  elections"). 


Alterations  in  circuits.  It  was  held  that  once  the  alternative  system 
of  judicial  circuts  provided  for  by  this  section  was  adopted,  the  provisions  of 
section  13  of  this  article,  that  "new  circuits  may  be  formed  and  the  boundar- 
ies of  circuits  changed  by  the  General  Assembly,  at  its  session  next  preceding 
the  election  for  circuit  judges  therein,  but  at  no  other  time,"  applied  as 
limitations  upon  the  time  when  alterations  in  circuits  could  be  made.  The 
session  of  the  General  Assembly  referred  to  is  that  which  convenes,  and  not 
necessarily  that  which  regularly  adjourns,  next  prior  to  the  judicial  election.**® 
(As  to  whether  an  act  creating  new  circuits  or  changing  boundaries  of  cir- 
cuits may  be  made  to  go  into  effect  prior  to  the  first  day  of  July  without  be- 
ing passed  as  an  emergency  act,  see  discussion  article  4,  section  13,  subhead- 
ing, "Date  of  going  into  effect"). 


Section  16.  From  and  after  the  adoption  of  this  Constitution, 
Judges  of  the  Circuit  Courts  shall  receive  a  salary  of  three  thousand 
dollars  per  annum,  payable  quarterly,  until  otherwise  provided  by 
law.  And  after  their  salaries  shall  be  fixed  by  law,  they  shall  not 
be  increased  or  diminished  during  the  terms  for  which  said  judges 
shall  be,  respectively,  elected;  and  from  and  after  the  adoption  of 
this  Constitution,  no  judge  of  the  Supreme  or  Circuit  Court  shall 
receive  any  other  compensation,  perquisite  or  benefit,  in  any  form 
whatsoever,  nor  perform  any  other  than  judicial  duties  to  which 
may  belong  any  emoluments. 


(As  to  the  meaning  of  the  first  clause  of  the  second  sentence  of  this  sec- 
tion, see  discussion  article  4,  section  21,  subheading,  "Judicial  officers.") 

It  has  been  suggested  that  the  General  Assembly  is  without  power,  under 
this  section,  to  provide  for  extra  compensation  for  a  circuit  judge  holding 
court  for  another  judge  outside  of  his  own  district.®'^  (S-ee  discussion  article 
6,  sections  17,   18,  23,  subheadings,  "Interchange  of  judges.") 


S5  People  V  Wall,    88    111.    75    (1878);    People   v   Knopf,    198   111.    340    (1902). 
8«  People  v  Wall,   88   111.   75    (1878);   People  v  Rose,    166   111.    t22    (1897). 
87  Hall   v   Hamilton,    74    111.    437    (1874). 


166  Article  6,  Sections  17,  18 

This  section  merely  prohibits  the  performance  of  duties  imposed  by  law, 
other  than  judicial  duties,  for  a  compensation.  Thus,  it  does  not  prevent  a 
judge  of  the  Supreme  Court  from  practicing  law,  under  a  private  contract, 
for  a  remuneration.^** 


Section  17.  No  person  shall  be  eligible  to  the  office  of  Judge 
of  the  circuit  or  any  inferior  court,  or  to  membership  in  the  "Board 
of  County  Commissioners,"  unless  he  shall  be  at  least  twenty-five 
years  of  age,  and  a  citizen  of  the  United  States,  nor  unless  he  shall 
have  resided  in  this  State  five  years  next  preceding  his  election,  and 
be  a  resident  of  the  circuit,  county,  city,  cities,  or  incorporated  town 
in  which  he  shall  be  elected. 


Judges  of  courts.  The  Supreme  Court  held  that  a  provision  similar  to 
this,  in  section  11  of  article  5  of  the  constitution  of  1848,  did  not  apply  to 
judges  of  city  courts.  The  Attorney  General  has  placed  the  same  construction 
upon  the  present  provision.  The  Supreme  Court,  however,  now  seems  in- 
clined to  hold  that  the  section  under  consideration  does  apply  so  as  to  fix 
the  qualifications  of  judges  of  city  courts.^^  The  Attorney  General  has  ruled 
that  the  provisions  of  this  section  apply  so  as  to  fix  the  qualifications  of 
judges  of  county  courts.^ 


County  commissioners.  The  term  "board  of  county  commissioners", 
as  used  in  this  section,  refers  only  to  the  three  officers  of  that  name  elected  in 
counties  not  under  township  organization,  and  does  not  refer  to  the  board  of 
commissioners  of  Cook  County.  This  section  does  not,  therefore,  require  the 
members  of  that  board  to  possess  the  specified  qualifications.*^  (See  discus- 
sion article  7,  section  6;  article  10,  section  7.) 


Interchange  of  Judges.  There  is  nothing  in  this  section  to  prohibit 
the  General  Assembly  from  authorizing  a  judge  of  a  circuit  court  to  hold 
court  for  another  judge,  outside  of  his  own  county.®^  (See  discussion  article 
6,  section  16,  and  sections  18  and  23,  subheadings,  "Interchange  of  judges.") 


Section  18.  There  shall  be  elected  in  and  for  each  county,  one 
county  judge  and  one  clerk  of  the  county  court,  whose  term  of  office 
shall  be  four  years.  But  the  General  Assembly  may  create  districts 
of  two  or  more  contiguous  counties,  in  each  of  which  shall  be  elected 
one  judge,  who  shall  take  the  place  of  and  exercise  the  powers  and 
jurisdiction  of  county  judges  in  such  districts.  County  Courts  shall 
be  courts  of  record,  and  shall  have  original  jurisdiction  in  all  matters 
of  probate ;  settlement  of  estates  of  deceased  persons ;  appointment 

**«Town   of   Bruce   v    Dickey,    116    111.    527    (1886). 

8»  People  V  Wilson.  15  111.  388  (1854);  People  v  Lippincott.  67  111.  ?,33  (1873); 
People  V  Olson,  245  111.  288  (1910);  Report  Attorney  General  1914,  p.  975;  but 
see  Franklin   v  Westfall.    273   111.   402    (1916). 

«« Report    Attorney    General    1914,    p.    1169. 

»i  People  V  McCormick.   261  111.   413    (1914). 

»2  Jones  V  Albee,   70  111.  34    (1873). 


Article  6,  Section  18  167 

of  guardians  and  conservators,  and  settlements  of  their  accounts ; 
in  all  matters  relating  to  apprentices;  and  in  proceedings  for  the 
collection  of  taxes  and  assessments,  and  such  other  jurisdiction  as 
may  be  provided  for  by  general  law. 


Interchange  of  judges.  The  General  Assembly  is  not  prohibited  from 
authorizing  one  county  judge  to  hold  county  court  in  another  county, 
even  though  he  may  thus  hold  a  branch  court,  while  the  regular  county 
judge  is  sitting.*"^  Nor  is  the  General  Assembly  without  power  to  authorize 
a  county  judge  to  hold  a  city  court."^  (See  discussion  article  6,  section 
inability  of  the  probate  judge.  Similarly,  under  these  conditions  the  judge 
of  a  probate  court  may  be  empowered  by  statute  to  sit  in  the  county  court.** 
In  the  opinion  of  the  Attorney  General,  the  General  Assembly  may  authorize 
a  county  judge  to  hold  a  city  court.'^  (See  discussion  article  6,  section 
16,  and  sections  17  and  23,  subheadings,  "Interchange  of  judges.'"^ 


Effect  of  establishment  of  probate  courts.  The  establishment  of  a 
probate  court  in  a  particular  county,  pursuant  to  section  20  of  this  article, 
operates  to  deprive  the  county  court  of  that  county  of  jurisdiction  over  the 
matters  embraced  in  that  section,  namely,  "all  probate  matters,  the  settle- 
ment of  estates  of  deceased  persons,  the  appointment  of  guardians  and  con- 
servators, and  settlements  of  their  accounts;  in  all  matters  relating  to 
apprentices,  and  in  cases  of  sales  of  real  estate  of  deceased  persona  for  the 
payment  of  debts."  As  to  such  matters,  the  jurisdiction  of  the  probate 
courts,  once  established,  is  exclusive.'*"  However,  the  establishing  of  a  pro- 
bate court  in  a  particular  county  does  not  operate  to  divest  the  county 
court  of  that  county  of  a  statutory  jurisdiction  not  included  within  these 
terms."' 

Thus,  the  constitution  contemplates  two  classes  of  county  courts;  one 
having  jurisdiction  over  all  of  the  matters  embraced  in  section  18,  and  the 
other,  composed  of  the  county  courts  in  counties  in  which  probate  courts 
have  been  established,  having  jurisdiction  over  "proceedings  for  the  col- 
lection of  taxes  and  assessments"  and  "such  other  jurisdiction  as  may  be 
provided  by  general  law."  To  this  extent,  by  virtue  of  the  constitution 
itself,  the  jurisdiction  of  the  county  courts  is  not  uniform."^  (See  dis- 
cussion article  6,  section  29,  subheading,  "Constitutional  exceptions  to  rule 
of  uniformity.") 


Jurisdiction  not  exclusive.  The  section  under  consideration  does  not 
operate  to  vest  in  county  courts  exclusive  original  jurisdiction  over  "pro- 
ceedings for  the  collection  of  assessments  and  taxes."  The  General  As- 
sembly may,  therefore,  confer  a  concurrent  jurisdiction  over  such  matters 
upon  circuit  courts.**  The  Supreme  Court  suggested,  in  the  case  of  Shaw 
v  Moderwell,^  that  under  this  section  county  courts,  in  counties  wherein 
probate  courts  have  not  been  established,  do  not  have  exclusive  jurisdiction 
of  "matters  of  probate",  and  that  concurrent  jurisdiction  over  such  mat- 
ters might  be  conferred  upon  other  courts.  This  case  was  decided,  however, 
on  the  basis  of  the  fact  that  in  authorizing  circuit  courts  to  hear  will  con- 
tests, the  General  Assembly  had  not  conferred  upon  circuits  courts  an  orig- 


«»Pike  v   City  of  Chicago,    155   111.   656    (1895). 
"'City   of  Moline   v   C.   B.   &  Q.   Ry.   Co.,    262    111.   52    (1914). 
0"  Report   of  Attorney   General    1912,    p.    283. 

'•>«Klokke  v  Dodge.   103  111.  125    (1882);  Meserve  v  Delaney,  105  111.  53    (1882). 
9T  People  v  Loomis,   96   111.  377    (1880). 

"SKlokke  V  Dodge,  103  111.  125   (1882);  Meserve  v  Delaney,  105  111.  53    (1882). 
»» Hundley  v  Commissioner's  of  Lincoln  Park,   67   111.   559    (1873)- 
1  Shaw  v  Moderwell,  104  111.  64   (1882). 


168  Article  6,  Section  18 

inal  jurisdiction  in  a  "matter  of  probate."  That  is,  this  proceeding  is  not 
one  to  establish,  but  rather,  to  impeach  a  will.  (As  to  the  meaning  of  the 
terms,  "matters  of  probate,"  "appointment  of  guardians  and  conservators 
and  settlement  of  their  accounts",  see  discussion  article  6,  section  20,  sub- 
headings, "Probate  matters,"  "Appointment  of  guardians  and  conservators.") 


Estates  of  deceased  persons.  The  provisions  of  this  section,  vesting 
in  the  county  courts  in  counties  wherein  probate  courts  have  not  been 
established,  jurisdiction  over  the  "settlement  of  estates  of  deceased  per- 
sons" excludes  the  possibility  that  such  courts  may  settle  the  estates  of 
persons  not  actually  dead.-  However,  the  General  Assembly  may  confer 
jurisdiction  upon  -these  courts  to  settle  the  estates  of  persons  presumed  in 
law  to  be  dead,  when  the  distributees  are  required  to  give  bond  to  protect 
those  persons,  if,  actually,  they  are  then  alive.^ 

Under  this  clause  the  General  Assembly  may  regulate  the  procedure  of 
a  probate  court  relating  to  the  sale  of  the  real  estate  of  deceased  persons 
for  the  payment  of  debts,  so  as  to  authorize  probate  courts  to  adjudicate  the 
rights  of  claimants  to  the   land  prior  to  the  sale.* 


Statutory  jurisdiction.  There  is  no  limitation  in  the  last  clause  of  this 
section  as  to  the  type  of  jurisdiction  that  may  be  conferred  upon  county 
courts  "by  general  law."  However,  in  view  of  the  provisions  of  section 
12  of  this  article,  the  jurisdiction  of  county  courts  in  "causes  in  law  or 
equity,"  other  than  those  enumerated  in  section  18,  such  as  criminal  cases 
and  cases  relating  to  the  enforcement  of  testamentary  trusts,  may  not  be 
made  exclusive  so  as  to  deprive  circuit  courts  of  jurisdiction  over  such 
cases.^  (See  discussion  article  6,  section  12,  subheading  "Original  juris- 
diction.") 

An  act  which  confers  a  particular  jurisdiction  upon  all  county  courts 
except  that  of  Cook  County,  is  not  a  "general  law"  within  the  meaning  of 
this  section."  Similarly,  under  section  29  of  this  article,  it  has  been  held 
that  the  General  Assembly  may  not  confer  a  particular  jurisdiction  upon 
county  courts  in  counties  wherein  probate  courts  have  not  been  established, 
unless  the  same  jurisdiction  is  conferred  upon  the  other  county  courts. 
Although  the  constitution  itself  creates  a  lack  of  uniformity  in  the  jurisdic- 
tion of  county  courts,  (see  discussion  preceding  subheading  "Effect  of 
establishment  of  probate  courts"),  this  exception  does  not  go  to  the  extent 
of  authorizing  the  General  Assembly  to  confer  a  jurisdiction  upon  county 
courts  in  counties  wherein  probate  courts  have  been  established,  which  is 
not  conferred  upon  county  courts  in  the  other  counties.'^'  (See  discussion 
article  6,  section  29,  subheading,  "Constitutional  exceptions  to  rule  of 
uniformity.") 

The  last  clause  of  this  section,  as  to  counties  that  have  adopted  town- 
ship organization,  was  held  to  be  so  modified  by  the  provision  of  section  4 
of  the  schedule,  as  not  to  be  self-executing.  That  is,  it  did  not  operate  to 
repeal,  without  further  legislation,  the  jurisdiction  of  these  county  courts, 
which  had  been  conferred  by  special  act.^  (See  discussion,  section  4  of 
the  schedule.) 


2  Thomas   v   People,    107    111.   517    (1883). 

3  Stevenson   v  Montgomery,    263   111.   93    (1914). 
*  Newell    V    Montgomery.    129    111.    58     (1889). 

5  Myers   v    People.    67    111.    503    (1873);    Mapes    v   People.    69    111.    523    (1873); 
In  re  Estate  of  Mortenson,   248   111.   520    (1911);    Prackelton  v   Masters,    249   111. 

■5  Myers   v   People,    67    111.    503    (1873). 

^Klokke  V  Dodge,  103  111,  125  (1882);  Meserve  v  Delaney,  105  III.  53   (1882). 

8  Blake   v   Peckham,    64    111.    362    (1872). 


Article  6,  Sections  19,  20  169 

Section  19.     Appeals  and  writs  of  error  shall  be  allowed  from 
final  determinations  of  county  courts,  as  may  be  provided  by  law. 


(See  discussion  article  6,  section  2,  subheading,  "Appeals  and  writs  of 
error"). 


Section  20.  The  General  Assembly  may  provide  for  the  estab- 
lishment of  a  Probate  Court  in  each  county  having  a  population  o£ 
over  fifty  thousand,  and  for  the  election  of  a  judge  thereof,  whose 
term  of  office  shall  be  the  same  as  that  of  the  county  judge,  and  who 
shall  be  elected  at  the  same  time  in  the  same  manner.  Said  courts, 
when  established,  shall  have  original  jurisdiction  of  all  probate 
matters,  the  settlement  of  estates  of  deceased  persons,  the  appoint- 
ment of  guardians  and  conservators,  and  settlements  of  their  ac- 
counts; in  all  matters  relating  to  apprentices,  and  in  cases  of  the 
sales  of  real  estate  of  deceased  persons  for  the  payment  of  debts. 


Establishment  of  probate  courts.  The  Supreme  Court  held  that  under 
this  section  the  General  Assembly  was  not  required,  at  the  time  it  first 
established  probate  courts,  to  establish  one  at  that  time  in  each  county 
having  a  population  in  excess  of  50,000  inhabitants,  and  that  the  General 
Assembly  was  not  prohibited  from  limiting  the  original  act  establishing 
probate  courts  to  counties  having  a  population  of  100,000  inhabitants.  It 
was  suggested,  moreover,  in  this  case,  that  under  this  section  the  General 
Assembly  might  have  gone  so  far  as  to  establish  a  probate  court  in  one 
county,  by  a  special  act,  applicable  to  that  one  county,  alone.'  (The  present 
probate  court  act  is  applicable  to  counties  having  a  population  of  70,000, 
or  more.)^" 

(As  to  interchange  of  judges,  see  discussion  article  6,  section  18,  sub- 
heading, "Interchange  of  judges."  As  to  whether  the  jurisdiction  of  pro- 
bate courts  is  exclusive,  see  discussion  article  6,  section  18,  subheading,, 
"Effect  of  establishment  of  probate  courts.") 


Jurisdiction  limited.  The  section  under  consideration  has  been  con- 
strued to  confine  the  jurisdiction  of  probate  courts  to  the  subjects  named. 
Thus,  the  General  Assembly  is  without  power  to  confer  upon  probate  courts 
a  jurisdiction  not  embraced  within  the  terms  used  in  this  section,  such  as 
the  foreclosure  of  mortgages  executed  by  guardians  on  their  ward's  prop- 
erty, testamentary  trusts,  and,  perhaps,  the  levying  of  inheritance  taxes." 


Probate  matters.  It  was  suggested  in  an  early  case  that  the  term 
"probate  matters"  was  used  in  this  section  in  its  broadest  and  most  general 
sense.  However,  it  was  later  held  that  this  term  merely  embraces  "all 
matters  necessarily  involved  in  the  disposition  of  the  estates  of  deceased 
persons  from  the  time  of  the  owners'  death  until  the  property  has  been 


•Knickerbocker  v  People,  102  111.  218    (1882). 

'"Kurd's    Revised    Statutes    1917,    chap.    37,    p.    882. 

"People  v  Loomis,  96  111.  377  (1880);  In  re  Estate  of  Mortenson,  248  111 
520  (1911);  Frackelton  v  Masters,  249  111.  30  (1911);  Report  Attorney  General 
1915,    p.    334. 


170  Article  6,  Section  21 

placed  in  the  possession  of  those  to  whom  it  devolves;"  and  that  it  does 
not,  therefore,  include  the  enforcement  of  testamentary  trusts.  Nor  does 
it  include  any  of  the  matters  embraced  in  the  other  terms  used  in  the 
section  under  discussion,  such  as  "the  appointment  of  guardians  and  con- 
servators," except  that  of  "the  settlement  of  the  estates  of  deceased  persons." 
With  this  latter  term,  it  was  held  the  term  "probate  matters"  is  coexten- 
sive." 

(As  to  the  nature  of  a  will  contest  in  the  circuit  court,  see  discussion 
article  6,  section  18,  subheading,  "Jurisdiction  not  exclusive."  As  to  estates 
of  deceased  persons,  see  discussioii  article  6,  section  18,  subheading, 
"Estates  of  deceased  persons"). 


Appoinment  of  guardians  and  conservators.  Under  this  clause,  the 
General  Assembly  may  empower  probate  courts  to  authorize  guardians  to 
sell  their  minor  wards'  real  estate.^'*  Probate  courts,  under  this  clause, 
may  be  given  jurisdiction  to  adjudge  persons  to  be  drunkards  or  spend- 
thrifts, and  to  appoint  conservators  for  them.^'  However,  the  jurisdiction 
6i  probate  courts  with  reference  to  the  settlement  of  accounts  of  guardians, 
under  the  constitution,  is  limited  to  that  specific  subject  and  does  not  ex- 
tend to  the  settlement  of  the  equities  between  the  guardian  and  ward, 
arising  outside  of  the  guardianship.^^ 


Section  21.  Justices  of  the  peace,  police  magistrates,  and  con- 
stables shall  be  elected  in  and  for  such  districts  as  are,  or  may  be, 
provided  by  law,  and  the  jurisdiction  of  such  justices  of  the  peace 
and  police  magistrates  shall  be  uniform. 


Officers  to  be  elected.  This  section  requires  the  officers  named  therein 
to  be  elected.  For  instance,  the  General  Assembly  is  prohibited  by  this 
section  from  authorizing  the  appointment  of  constables  by  the  board  of 
trustees  of  a  village.^" 


Jurisdiction  of  justices  of  the  peace  and  police  magistrates.  This  sec- 
tion operated  to  abrogate  all  laws  in  force  at  the  time  of  the  adoption  of 
the  constitution  of  1870,  which  had  clothed  police  magistrates  with  powers 
not  generally  possessed  by  justices  of  the  peace.  It  placed  justices  of  the 
peace  and  police  magistrates,  so  far  as  their  jurisdiction  is  concerned, 
upon  the  same  footing.  They  are  to  exercise  the  same  powers  and  juris- 
diction. For  example,  a  statute  enacted  since  1870,  which  conferred  a  par- 
ticular jurisdiction  upon  justices  of  the  peace  was  held  to  have  impliedly 
conferred  the  same  jurisdiction  upon  police  magistrates.^" 

Section  27  of  article  5  of  the  constitution  of  1848  provided  as  follows: 
"There  shall  be  elected  in  each  county  in  this  State,  in  such  districts  as 
the  General  Assembly  may  direct,  by  the  qualified  electors  thereof,  a  com- 
petent number  of  justices  of  the  peace,  who  shall  hold  their  offices  for  the 
term  of  four  years,  and  until  their  successors  shall  have  been  elected  and 


^o«  f.Y.^J^.^^^  Tobin,  107  111.  212  (1883);  In  re  Estate  of  Morten.son.  248  111. 
S20    (1911);   Frackelton  v   Masters,   249    111.   30    (1911). 

IS  Winch    V    Tobin.    107    111.    212    (1883) 

1' Ure    V   Ure.    223    111.    454    (1906). 

^'"'People   V    Seelye.    146    111.    189    (1892). 

1"  People   V    Bollam.    182    111.    528    (1899'». 

1' Brown  v  Jerome.  102  111.  371  (1882);  Commissioners  of  Highways  v 
Jackson,    165    111.    17    (1897). 


Article  6,  Sections  22,  23  171 

qualified,  and  who  shall  perform  such  duties,  receive  such  compensation,  and 
exercise  such  jurisdiction  as  may  be  prescribed  by  law."  The  Supreme 
Court  held  in  construing  this  section  that:  "As  to  these  officers  there  is 
no  limit  placed  by  the  constitution  as  to  legislative  power.  They  may  create 
as  many  as  they  please,  in  such  districts  as  they  please,  and  prescribe  their 
jurisdiction  as  they  please,  nor  is  it  necessary  that  all  the  justices  of  the 
peace  of  the  state  should  have  a  uniform  jurisdiction."  ^* 

The  section  of  the  constitution  of  1870  under  consideration  and  section 
29  of  this  article,  however,  were  construed  to  have  abrogated  all  laws  enacted 
prior  to  1870,  which  conferred  a  varied  jurisdiction  upon  different  justices 
of  the  peace,  leaving  the  jurisdiction  of  all  justices  of  the  peace  to  be  defined 
by  a  general  law  then  in  force.'"  Moreover,  the  requirement  of  uniformity  in 
the  jurisdiction  of  justices  of  the  peace  and  police  magistrates  has  been  held 
to  extend  to  territorial  jurisdiction.  That  is,  an  act  was  held  void  which, 
created  two  districts  for  justices  of  the  peace  in  Cook  county,  when  the 
districts  downstate  were  co-extensive  with  the  counties.^** 


Section  22.  At  the  election  for  members  of  the  General  As- 
sembly in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sev- 
enty-two, and  every  four  years  thereafter,  there  shall  be  elected  a 
State's  Attorney  in  and  for  each  county,  in  lieu  of  the  State's  At- 
torneys now  provided  by  law,  whose  term  of  office  shall  be  four 
years. 

(As  to  salaries  of  state's  attorneys,  generally,  see  discussion  article  6, 
section  32,  subheading,  "Compensation  of  state's  attorneys";  iirticle  10,  section 
10,  subheading  "County  officers."  As  to  the  salaries  of  state's  attorneys  in 
Cook  County,  see  discussion  article  6,  section  25.  As  to  increases  in  the  com- 
pensation of  state's  attorneys  during  their  term  of  office,  see  discussion 
article  4,  section  21,  subheading,  "Municipal  officers."  As  to  the  qualifications, 
of  state's  attorneys,  see  discussion  article  7,  section  6.) 


Section  23.  The  county  of  Cook  shall  be  one  judicial  circuit. 
The  Circuit  Court  of  Cook  county  shall  consist  of  five  judges,  until 
their  number  shall  be  increased,  as  herein  provided.  The  present 
Judge  of  the  Recorder's  Court  of  the  city  of  Chicago,  and  the  pres- 
ent Judge  of  the  Circuit  Court  of  Cook  county,  shall  be  two  of  said 
judges,  and  shall  remain  in  office  for  the  terms  for  which  they  were 
respectively  elected,  and  until  their  successors  shall  be  elected  and 
qualified.  The  Superior  Court  of  Chicago  shall  be  continued,  and 
called  the  Superior  Court  of  Cook  County.  The  General  Assembly 
may  increase  the  number  of  said  judges,  by  adding  one  to  either  of 
said  courts  for  every  additional  fifty  thousand  inhabitants  in  said 
county  over  and  above  a  population  of  four  hundred  thousand.  The 
terms  of  office  of  the  judges  of  said  courts  hereafter  elected,  shall  be: 
six  years. 


Jurisdiction.     The    superior    court    of    Cook    County,    under    the    pro- 
visions of  this  section  and  those  of  section  24  of  this  article,  has  the  same 

18  In  re  Welsh,   17   111.   161    (1855). 
"Phillips   V   Quick,    63    111.    445    (1872). 
2«  People    V   Meech,    101    111.    200    (1882). 


172  Article  6,  Section  23 

jurisdiction  as  a  circuit  court.  Moreover,  the  superior  and  circuit  courts 
of  Cook  County  are  of  the  same  class  and  grade  and  they  have  the  same 
jurisdiction  as  all  other  circuit  courts.  (See  discussion  article  6,  section 
29,  subheading,  "Provisions  mandatory.")  A  special  statutory  jurisdiction  ex- 
pressly conferred  upon  circuit  courts,  has  been  held  to  have  been  im- 
pliedly conferred  upon  the  superior  court  of  Cook  County,^^ 

However,  the  superior  court  of  Cook  county  is  actually  a  separate 
court,  existing  independently  of  the  circuit  court  of  that  county.  One  of 
these  courts,  therefore,  may  not  exercise  revisory  powers  over  the  judg- 
ments and  decrees  of  the  other.^^ 

The  provisions  of  section  26  of  this  article  did  not  operate  to  vest  an 
exclusive  jurisdiction  over  criminal  and  quasi-criminal  matters  in  the  crimi- 
nal court  of  Cook  county,  so  as  to  divest  the  circuit  and  superior  courts  of 
that  county  of  jurisdiction  over  those  matters.  Rather,  the  constitution 
contemplated  that  as  to  these  matters,  the  three  courts  just  mentioned 
should  have  concurrent  jurisdiction.^  (See  discussion  article  6,  section  12, 
subheading,  "Original  jurisdiction;"  article  6,  section  26,  subheading,  "Origi- 
nal jurisdiction  not  exclusive.") 

(As  to  the  power  of  a  circuit  or  superior  court  judge,  sitting  in  the 
criminal  court,  to  act  as  a  judge  of  the  circuit  or  superior  court,  see  dis- 
cussion article  6,  section  26,  subheading,  "Judges.") 


Elections  and  terms.  Although  the  constitution,  (article  6,  section  14), 
fixes  the  day  of  election  of  circuit  judges  as  the  first  Monday  in  June,  in 
1873,  and  every  sixth  year  thereafter,  it  does  not  fix  the  day  of  election  of 
judges  of  the  superior  court  of  Cook  county.  Therefore,  the  General 
Assembly,  although  it  may  not  prescribe  another  day  for  the  election  of 
circuit  judges,  may  provide  for  the  election  of  judges  of  the  superior  court 
at  any  time.  (See  discussion  article  6,  section  14,  subheading,  "Judicial  elec- 
tions"). The  section  under  consideration,  however,  does  fix  the  terms  of 
office  of  the  judges  of  the  superior  court  as  well  as  those  of  judges  of  the 
circuit  court,  at  six  years.  Hence,  even  as  to  the  first  judges  elected  after 
an  increase  in  the  number  thereof  pursuant  to  this  sectica,  the  General 
Assembly  is  without  power  to  provide  that  either  circuit  or  superior  court 
judges  may  be  elected  for  terms  of  less  than  six  years  each.  These  terms 
begin  upon  the  day  of  election.^  (See  discussion  article  6,  section  12,  sub- 
heading, "Terms  of  office  of  judges,") 


Branch  courts.  The  provisions  of  the  section  under  consideration  and 
those  of  section  24  of  this  article,  do  not  require  the  judges  of  either  the 
circuit  or  superior  court  to  sit  en  banc.  Rather,  the  constitution  contem- 
plates that  each  iudge  shall  hold  a  branch  court  independently  of  the 
others,  and  while  thus  engaged,  shall  have  all  of  the  powers  of  a  circuit 
court.^" 


Interchange  of  judges.  The  General  Assemblj'  is  not  prohibited  from 
authorizing  downstate  judges  of  courts  of  record  to  sit  as  judges  of  the 
superior  or  circuit  court  of  Cook  County.^  (See  discussion  article  6,  section 
16,  and  sections  17  and  18,  subheadings,  "Interchange  of  judges.") 


-1  Jones  V   Albee,   70   111.   34    (1873);   Berkowitz   v   Lester,    121    111.    99    (1887); 
Cobe   V    Guyer,    237    111.    516    (1909). 

22Mathias  v  Mathias,   202   111.   125    (1903). 

23  Berkowitz   v   Lester,    121    111.    99    (1887). 

S'*  People  V  Knopf,   198   111.  340    (1902):  People  v  Sweltzer,  280   111.   436    (1917). 

^  Jones    V   Albee.    70    111.    34    (1873);    Hall    v    Hamilton,    74    111.    437    (1874). 

2"  Jones    V   Albea,    70    111.    34    (1873);    Hall    v    Hamilton.    74    111.    4S7    (1874). 


Article  6,  Sections  24,  25  173 

Section  24.  The  judge  having  the  shortest  unexpired  term 
shall  be  Chief  Justice  of  the  court  of  which  he  is  a  judge.  In  case 
there  are  two  or  more  whose  terms  expire  at  the  same  time,  it  may 
be  determined  by  lot  which  shall  be  chief  justice.  Any  judge  of 
either  of  said  courts  shall  have  all  the  powers  of  a  circuit  judge,  and 
may  hold  the  court  of  which  he  is  a  member.  Each  of  them  may 
hold  a  different  branch  thereof  at  the  same  time. 


(As  to  the  construction  placed  upon  the  last  two  sentences  of  this  sec 
tion,   see  discussion   article   6,   section   23.) 


Section  25.  The  judges  of  the  Superior  and  Circuit  Courts, 
and  the  State'§  Attorney,  in  said  county,  shall  receive  the  same  sal- 
aries, payable  out  of  the  State  treasury,  as  is  or  may  be  paid  from 
said  treasury  to  the  circuit  judges  and  State's  Attorney's  of  the 
State,  and  such  further  compensation,  to  be  paid  by  the  county  of 
Cook,  as  is  or  may  be  provided  by  law ;  such  compensation  shall  not 
be  changed  during  their  continuance  in  office. 

The  words  "salary''  and  "compensation,"  in  this  section,  are  used  inter- 
changeably. They  refer,  not  to  the  fees  incident  to  the  office  of  state's  attor- 
ney of  Cook  county,  but  to  the  sums  of  money  paid  to  the  state's  attorney 
of  that  county  by  the  state  and  county,  as  a  salary.  Were  it  not  for  the  long 
continued  legislative  practice  of  allowing  to  the  state's  attorney  of  Cook 
county  the  fees  incident  to  his  office,  the  view  that  the  salaries  paid  by  the 
state  and  county  should  constitute  the  sole  source  of  that  officer's  official 
compensation,  would,  the  court  said,  have  prevailed.  However,  in  view  of 
that  practice,  it  was  held  that  the  compensation  of  the  state's  attorney  of 
Cook  county  was  not  confined  to  his  salary,  and  that  he  might  retain  the  fees 
of  his  office  which  exceeded  the  amount  of  the  salary.-^  (As  to  whether  a 
down  state  state's  attorney's  salary  must  be  fixed  by  the  General  Assembly  or 
by  the  county  board,  see  discussion  article  6  section  32,  subheading,  "Com- 
pensation of  state's  attorneys";  article  10,  section  10,  subheading,  "County 
officers.") 

This  section,  it  has  been  held,  does  not  require  that  whenever  the  com- 
pensation of  the  circuit  or  superior  court  judges  is  increased,  that  of  the 
state's  attorney  must  also  be  increased  at  the  sa.me  time.=*  However,  the 
power  of  the  General  Assembly,  under  the  last  clause  of  this  section,  to  in- 
crease the  compensation  of  these  officers,  either  that  which  is  paid  by  the 
state  or  that  which  is  paid  by  the  county,  is  subject  to  two  limitations  as 
to  time.  In  the  first  place,  it  has  been  held  that  the  last  clause  of  this  sec- 
tion, though  slightly  different  in  language,  constitutes  one  of  a  series  of 
statements  in  the  constitution  which  establishes  a  policy  prohibitive  of 
changes  in  an  officer's  compensation  during  the  official  term  for  which  he 
has  been  elected,  without  regard  to  the  actual  tenure  of  the  individual.-®  (See 
discussion  article  4,  section  21,  subheading,  "Municipal  officers.")  In  the 
second  place,  in  the  case  of  judges  of  the  circuit  and  superior  courts  of 
Cook  County,  this  term,  of  office,  in  the  absence  of  other  constitutional  pro- 
visions, begins  upon  the  day  of  election,  without  regard  to  the  day  upon 


27  Cook  County  v  Healy.    222   111.   310    (1906). 

28  People   V  Olsen,    222   111.    117    (1906). 

2»  Foreman  v  People,   209   111.   567   (1904). 


174  Article  6,  Section  26 

which  the  votes  are  canvassed,  the  commission  issued,  or  the  time  when  the 
judge  qualifies.^" 

(As  to  the  time  when  the  provisions  of  this  section  relating  to  judges' 
compensation  became  operative,  see  discussion,  section  21  of  the  schedule.) 


Section  26.  The  Recorder's  Court  of  the  city  of  Chicago  shall 
be  continued  and  shall  be  called  the  "Criminal  Court  of  Cook 
County."  It  shall  have  the  jurisdiction  of  a  circuit  court,  in  all  cases 
of  criminal  and  quasi  criminal  nature,  arising  in  the  county  of  Cook, 
or  that  may  be  brought  before  said  court  pursuant  to  law;  and  all 
recognizances  and  appeals  taken  in  said  county,  in  criminal  and 
quasi  criminal  cases  shall  be  returnable  and  taken  to  said  court.  It 
shall  have  no  jurisdiction  in  civil  cases,  except  in  those  on  behalf  of 
the  people,  and  incident  to  such  criminal  or  quasi  criminal  matters, 
and  to  dispose  of  unfinished  business.  The  terms  of  said  Criminal 
Court  of  Cook  County  shall  be  held  by  one  or  more  of  the  judges  of 
the  Circuit  or  Superior  Court  of  Cook  county,  as  nearly  as  may  be 
in  alteration,  as  may  be  determined  by  said  judges,  or  provided  by 
law.    Said  judges  shall  be  ex-officio,  judges  of  said  court. 


Provisions  solf-executing.  This  section  became  operative  immediately 
upon  the  adoption  of  the  constitution.  All  statutes  relating  to  the  Record- 
er's Court  which  were  inconsistent  with  the  new  constitution,  were  abrogated, 
and  all  those  not  inconsistent  therewith,  were  continued  in  force.  Thus,  the 
act  requiring  grand  and  petit  jurors  for  the  Recorder's  Court  to  be  drawn 
from  within  the  city  of  Chicago  was  repealed,  for  the  jurors  in  this  court 
are  to  come  from  the  county  as  a  whole.^^ 


Jurisdiction  in  habeas  corpus.  The  clauses  of  the  section  under  con- 
sideration, limiting  the  jurisdiction  of  the  criminal  court  in  civil  cases,  and 
creating  the  exceptions  thereto,  retained  for  the  criminal  court  the  juris- 
diction of  the  Recorder's  Court  in  habeas  corpus  proceedings.  In  addition, 
this  jurisdiction  is  vested  in  the  criminal  court  by  the  clause  conferring  the 
jurisdiction  of  a  circuit  court  upon  that  court  in  all  cases  of  a  criminal  and 
quasi-crimina,l  nature.^*^ 


Original  jurisdiction  not  exclusive.  Although  a  contrary  doctrine  was  sug- 
gested in  an  early  case,  it  has  been  held  that  the  original  jurisdiction  vested 
by  this  section  in  the  criminal  court  of  Cook  county  in  criminal  and  quasi- 
criminal  cases,  is  not  exclusive.  The  superior  and  circuit  courts  of  Cook 
county,  being  of  the  same  class  and  grade  and  having  the  same  jurisdiction  as 
other  circuit  courts,  have  concurrent  jurisdiction  in  such  cases,  because  they 
are  cases  embraced  within  the  term  "causes  in  law  and  equity"  as  used  in  the 
provisions  of  section  12  of  this  article  defining  the  jurisdiction  of  circuit 

3»  People  v  Sweitzer,   280   111.   436    (1917). 

31  People  v  Bradley,   60  111.  390    (1871);   Peri  v  People,   65   III.   17    (1872). 

33  People   v   Bradley,    60    111.    390    (1871). 


Article  6,  Section  27  175 

courts.  (See  discussion  article  6,  section  12,  subheading,  "Original  jurisdic- 
tion"; article  6,  section  23,  subheading,  "Jurisdiction.")  The  General  As- 
sembly may,  also,  confer  a  concurrent  jurisdiction  in  such  cases  upon  the 
municipal  court  of  Chicago."^ 


Jurisdiction  of  recognizances  and  appeals  exclusive.  The  jurisdiction 
of  the  criminal  court  of  Cook  county  over  statutory  recognizances  and  ap- 
peals taken  in  Cook  county  in  criminal  and  quasi-criminal  cases,  is  exclusive. 
To  this  extent,  the  appellate  jurisdiction  of  the  Cook  County  courts  is  not 
uniform  with  that  of  other  circuit  courts.  However,  this  merely  means 
that  whenever  a  statute  gives  a  right  to  take  a  recognizance  or  an  appeal 
in  such  a  case,  that  statute  must  require  the  recognizance  or  appeal  to  be 
taken  to  the  criminal  court.  The  General  Assembly  may,  therefore,  provide 
for  a  writ  of  error  from  either  the  appellate  or  Supreme  Court,  to  review 
a  judgment  of  the  municipal  court  of  Chicago  in  a  criminal  or  quasi-crim.ina.1 
case,  without  violating  this  section,  for  a  writ  of  error  is  not  a  statutory 
recognizance  or  appeal.=^* 


Quasi-criminal  cases.  The  term  "gwasi-criminal"  cases,  as  used  in  the 
clause  of  this  section  relating  to  recognizances  and  appeals  in  such  cases,  em- 
braces all  acts  which  are  neither  crimes  nor  misdemeanors,  but  which  are  in 
the  nature  of  crimes  and  which  are  punishable  by  forfeitures  and  penalties 
in  civil  or  criminal  proceedings.  It  thus  includes  cases  involving  the  im- 
position of  a  penalty  for  violation  of  a  city  ordinance  licensing  auctioneers, 
for  violation  of  a  statute  relating  to  gambling,  and  for  violation  of  a  statute 
regulating  the  practice  of  medicine.'"' 


Branch  courts.  This  section  does  not  require  that  the  judges  of  the 
criminal  court  of  Cook  County  shall  sit  en  hanc.  Rather,  it  contemplates  that 
the  individual  judges  shall  hold  branch  courts.^" 


Judges.  Under  this  section,  every  judge  of  the  circuit  or  superior 
court  of  Cook  county  is,  ex  officio,  a  judge  of  the  criminal  court.  Any  one 
of  them  has  the  power  and  the  right  to  sit  as  a  judge  of  that  court,  even 
though  he  has  not  been  designated  so  to  act  by  the  judges,  for  the  provision 
of  this  section  as  to  the  designation  of  the  judges  in  alternation  is  a  mere  reg- 
ulation for  the  convenience  of  the  judges  themselves.^' 

However,  when  such  a  judge  does  sit  in  the  criminal  court,  he  does  so 
as  ex  officio  judge  of  the  court,  and  not  as  judge  of  the  circuit  or  superior 
court.  While  so  acting,  he  is  without  power  to  enter  an  order  in  a  case  heard 
by  him  in  the  circuit  or  superior  court.  The  term  "unfinished  business,"  as 
used  in  this  section,  referred  only  to  the  unfinished  business  of  the  old  Re- 
corder's Court,  and  not  to  that  of  a  superior  or  circuit  judge  sitting  in  the 
criminal  court.^^ 


Section  27.     The  present  Clerk  of  the  Recorder's  Court  of  the 
city  of  Chicago,  shall  be  the  Clerk  of  the  Criminal  Court  of  Cook 

»3City  of  Chicago  v  O'Hara,  60  111.  413  (1871);  Berkowitz  v  Lester,  121  111. 
99    (1887);    People    v    Jacobson,    247    111.    394    (1910). 

34Bratsch  v  People.  195  111.  165  (1902);  People  v  Jacobson,  247  111.  394 
(1910);    People    v    Gartenstein,    248    111.    546    (1911). 

as  Wig-gins  V  City  of  Chicago.  68  111.  372  (1873);  Berkowitz  v  Lester,  121  III. 
99    (1887);    Bratsch   v   People,    195    111.    165    (1902). 

3«Cahill    V   People,    106    111.    621    (1883). 

37  Greene   v   People.    182    111.    278    (1899). 

3»U.  S.  Life  Ins.  Co.  v  Shattuck,  159  111.  610   (1896). 


176  Article  6,  Sections  28,  29 

county,  during  the  term  for  which  he  was  elected.  The  present 
Clerks  of  the  Superior  Court  of  Chicago,  and  the  present  Clerk  of 
the  Circuit  Court  of  Cook  County,  shall  continue  in  office  during  the 
terms  for  which  they  were  respectively  elected ;  and  thereafter  there 
shall  be  but  one  Clerk  of  the  Superior  Court,  to  be  elected  by  the 
qualified  electors  of  said  county,  who  shall  hold  his  office  for  the 
term  of  four  years,  and  until  his  successor  is  elected  and  qualified. 


This  section  did  not  repeal  the  statute  in  force  in  1870  relating  to  the 
liability  of  the  city  of  Chicago  for  the  fees  of  the  clerk  of  the  Recorder's 
Court,  It  continued  in  force  for  the  benefit  of  the  clerk  of  the  new  criminal 
court,  until  the  General  Asembly  provided  otherwise,  even  though  the  crim- 
inal court  was  given  jurisdiction  by  section  26  of  this  article  throughout  the 
county,  unlike  that  of  its  predecessor,  the  Recorder's  Court,  whose  territorial 
jurisdiction  was  limited  to  the  city.^* 


Section  28.  All  justices  of  the  peace  in  the  city  of  Chicago 
shall  be  appointed  by  the  Governor,  by  and  with  advice  and  consent 
of  the  Senate,  (but  only  upon  the  recommendation  of  a  majority  of 
the  judges  of  the  circuit,  superior  and  county  courts),  and  for  such 
districts  as  are  now  or  shall  hereafter  be  provided  by  law.  They 
shall  hold  their  offices  for  four  years,  and  until  their  successors  have 
been  commissioned  and  qualified,  but  they  may  be  removed  by  sum- 
mary proceeding  in  the  circuit  or  superior  court,  for  extortion  or 
other  malfeasance.  Existing  justices  of  the  peace  and  police  magis- 
trates may  hold  their  offices  until  the  expiration  of  their  respective 
terms. 


The  sixth  amendment  to  the  constitution  of  1870,  section  34  of  article 
4,  adopted  in  1904,  authorized  the  abolition  by  the  General  Assembly  of  the 
ofRces  of  justices  of  the  peace,  police  magistrates,  and  constables,  within 
the  city  of  Chicago,  should  a  municipal  court  be  established.  A  municipal 
court  was  established  and  these  offices,  within  the  city,  abolished,  by  an 
act  of  1905.*" 

However,  before  that  constitutional  amendment  was  adopted,  it  was 
held  that  the  section  under  consideration  abolished  the  office  of  police 
magistrate  in  the  city  of  Chicago;  that  it  required  justices  of  the  peace 
in  Chicago  to  be  appointed  by  the  Governor,  and  prevented  their  election 
by  the  people;  and  that  it  prevented  the  Governor  from  appointing  anyone 
as  a  successor  to  a  justice  of  the  peace  in  Chicago  who  had  not  been 
recommended  for  that  particular  position  by   the   judges.^^ 


Section  29.     All  judicial  officers  shall  be  commissioned  by  the 
Governor.   All  laws  relating  to  courts  shall  be  general,  and  of  urn- 


s'city  of  Chicago  v  O'Hara,  60  111.  413  (1871). 
«>Laws  1905,  p.  157,  at  p.  183. 

"People  V  Palmer,   64  111.   41    (1872);   People  v  O'Toole,   164  111.   344    (1897); 
Kaufman  v   People,    185   111.   113    (1900). 


Article  6,  Section  29  177 

form  operation ;  and  the  organization,  jurisdiction,  powers,  proceed- 
ings and  practice  of  all  courts,  of  the  same  class  or  grade,  so  far  as 
regulated  by  law,  and  the  force  and  effect  of  the  process,  judgments 
and  decrees  of  such  courts,  severally,  shall  be  uniform. 


Purpose  of  the  section.  The  constitution  of  1848,  as  interpreted  by  the 
court,  did  not  require  uniformity  in  the  jurisdiction,  forms  of  action,  prac- 
tice or  process  of  either  the  justices  of  the  peace,  the  county  courts,  or  the 
circuit  courts.  The  provision  of  section  1  of  article  5  of  that  instrument, 
that  city  courts  "shall  have  a  uniform  organization  and  jurisdiction,  in 
such  cities,"  was  construed  to  require  uniformity  in  those  matters  only 
as  between  city  courts  in  the  same  city  and  not  as  between  city  courts  in 
different  cities.^^ 

The  section  under  consideration  is  one  of  several  by  which  the 
framers  of  the  constitution  of  1870  sought  to  remedy  and  to  prevent  the 
recurrence  of  the  evils  growing  out  of  the  special  legislation  relating  to 
courts,  enacted  under  the  constitution  of  1848.  For  instance,  section  21 
of  this  article  requires  the  .iurisdiction  of  justices  of  the  peace  and  police 
magistrates  to  be  uniform.  Section  18  of  this  article  permits  county  courts 
to  have  "such  other  jurisdiction  as  may  be  provided  for  by  general  law," 
and  section  22  of  article  4  prohibits  the  enactment  of  local  or  special  laws 
"regulating  the  practice  in  courts  of  justice"  and  "the  jurisdiction  and  duties 
of  justices  of  the  peace,  police  magistrates  and  constables." 

Provisions  self  executing.  This  section  was  held  to  be  self  executing, 
so  as  to  repeal,  immediately  upon  the  adoption  of  the  constitution  of  1870, 
all  special  and  local  laws  regulating  the  organization,  jurisdiction,  powers, 
proceedings,  practice,  and  the  force  and  effect  of  the  process,  decrees  and 
judgments  of  courts  of  the  same  class  or  grade.^  (See,  however,  as  to 
county  courts,  discussion  article  6,  section  18,  subheading,  "Statutory  juris- 
diction," and  section  4  of  the  schedule.) 

Provisions  mandatory.  The  provisions  of  this  section  have  been  con- 
strued to  be  mandatory  as  to  legislation  enacted  since  1870.  For  instance, 
the  Supreme  Court  has  held  that  since  the  circuit  courts  and  the  circuit  and 
superior  courts  of  Cook  county  are  courts  of  the  same  class  and  grade, 
they  must,  under  this  section,  be  given  the  same  jurisdiction.'"*  A  general 
city  court  act  is  prohibited  by  the  section  under  consideration,  from  being 
applicable  to  a  city  located  in  two  counties,  for  the  reason  that  a  city  court 
in  that  city  would,  unlike  all  other  city  courts,  be  required  to  have  the 
machinery  for  making  available  a  grand  and  petit  jury  from  both  coun- 
ties."''    (See  discussion  article  6,  section  1,  subheading,  "City  courts.") 

Constitutional  exceptions  to  rule  of  uniformity.  There  are  several 
provisions  of  the  constitution  which  have  been  construed  to  create  excep- 
tions to  the  requirements  as  to  uniformity,  prescribed  by  the  section  under 
consideration. 

For  instance,  the  clause  in  this  section,  "all  laws  relating  to  courts 
shall  be  general  and  of  uniform  operation,"  has  been  construed  to  be  limited 
to  the  matters  specifically  enumerated  in  the  rest  of  the  section.  There- 
fore, special  laws  authorizing  circuit  judges  to  appoint  court  reporters  or 
regulating  the  making  up  of  the  jury  list,  inasmuch  as  these  laws  do  not 

"McDonnell  v  Olwell,  17  111.  375  (1856);  Stow  v  People,  25  111.  81  (1860); 
People   V   Rumsey.   64   111.   44    (1872). 

« People   V    Rumsey,    64    111.    44    (1872);    Hart   v   People.    89    111.    407    (1878). 

«Fergruson  v  People,  90  111.  510  (1878);  Berkowitz  v  L.ester,  121  111.  99 
(1887). 

« People   V    Rodenberg,    254   111.    386    (1912). 


178  Article  6,  Section  29 

relate  to  the  organization,  jurisdiction,  powers,  proceedings  or  practice 
of  courts,  are  not  invalid.*'     (See  discussion  section  6  of  the  schedule.) 

It  has  been  held  that  section  14  of  article  6  authorizes  the  General 
Assembly  to  pass  special  and  local  legislation  with  reference  to  the  time  of 
holding  terms  of  court  in  different  counties,  and  that  acts  of  that  character 
enacted  prior  to  1870  were,  therefore,  not  repealed  by  the  section  under 
discussion.*' 

Section  20  of  this  article  has  been  construed  to  deprive  county  courts 
in  counties  wherein  probate  courts  have  been  established,  of  jurisdiction 
over  the  matters  embraced  in  that  section,  and  of  itself,  to  disrupt  the  uni- 
formity of  the  jurisdiction  of  county*  courts.  This  exception  does  not  ex- 
tend, however,  to  authorizing  the  General  Assembly  further  to  destroy  the 
uniformity  of  jurisdiction  of  county  courts  by  legislation  applicable  only  to 
those  county  courts  in  counties  wherein  probate  courts  have  been  estab- 
lished.*^ 

The  provision  of  section  26  of  this  article,  that  all  recognizances  and 
appeals  in  Cook  County  in  criminal  and  quasi-criminal  cases  shall  be  taken 
to  the  criminal  court  of  that  county,  has  been  held  to  make  the  jurisdiction 
of  the  criminal  court  over  those  matters  exclusive  and  to  create  an  exception 
to  what  otherwise  might  be  a  requirement  of  the  section  under  consid- 
eration, that  the  appellate  jurisdiction  of  the  circuit  courts  must  be  uni- 
form.''^ 

The  sixth  amendment  to  the  constitution  of  1870,  section  34  of  article 
4,  adopted  in  1904,  provided  that  if  municipal  courts  should  be  created 
in  Chicago,  "the  jurisdiction  and  practice  of  said  municipal  courts  shall  be 
such  as  the  General  Assembly  shall  prescribe."  The  municipal  court  of 
Chicago  v/as  established  in  1905.  The  Supreme  Court  has  held  that  this 
provision  authorized  special  legislation  as  to  these  matters  with  reference 
to  the  municipal  court  of  Chicago,  and  so  created  an  exception  to  the  re- 
quirements as  to  uniformity  of  the  section  under  discussion.  For  instance, 
as  coming  within  this  exception,  the  Supreme  Court  has  held  valid  special 
acts,  applicable  alone  to  the  municipal  court,  relating  to  pleadings,  charges 
to  juries,  judicial  notice,  the  conditions  under  which  judgments  may  become 
liens,  and  the  power  of  that  court  to  make  rules  of  procedure.  It  has  been 
held,  however,  that  the  term  "practice"  as  used  in  section  34  of  article  4, 
does  not  embrace  changes  of  venue,  so  as  to  authorize  special  legislation, 
applicable  alone  to  the  municipal  court,  on  that  subject.^**  (See  discussion 
article  4,  section  22,  subheading,  "Changes  of  venue.")  This  exception 
in  favor  of  special  legislation  applicable  to  the  municipal  court  of  Chicago 
however,  has  been  held  not  to  extend  to  authorizing  the  General  Assembly 
to  pass  special  laws  regulating  the  practice  in  the  appellate  and  Supreme 
Courts  with  reference  to  cases  brought  thereto  on  either  appeal  or  writ  of 
error  from  the  municipal  court  of  Chicago.  Uniformity  in  the  jurisdiction, 
practice  and  procedure  of  either  the  appellate  or  Supreme  Court  as  re- 
quired by  section  29  of  this  article,  it  was  held,  means  that  the  powers  of 
those  courts  shall  be  exercised  alike  in  all  cases  from  all  courts  of  the  same 
class.  The  municipal  court  of  Chicago  and  city  courts,  on  the  one  hand, 
and  probate  courts  and  county  courts  exercising  probate  jurisdiction  on 
the  other  hand,  have  been  held  to  be  in  the  same  classes,  within  this  rule," 


<«  People  V  "Raymond.  186  111.  407  (1900);  compare  People  v  Rumsey,  64  111. 
44   (1872);  People  v  Onahan,  170  111.  449    (1897). 

*7  Karnes    v    People,    73    111.    274    (1874). 

•««Klokke    V    Dodge.    103    111.    12.5    (1882). 

^^Bratsch   v   People.    195   111.    16.5    (1902). 

■"'"Weil  V  Federal  Life  Ins.  Co..  264  111.  425  (1914);  Morton  v  Pusey,  237 
111.  26  (1908):  City  of  Chicago  v  Williams.  254  111.  360  (1912);  Lott  v  Davis,  264 
111.  272  (1914):  Hopkins  v  Levandowski,  250  111.  372  (1911);  Feigren  v  Shaeffer. 
256   Til.    493    (1912). 

"Morton  v  Pusey.  237  111.  26  (1908):  Clowry  v  Holmes.  238  111.  577  (1909); 
Dpvid  V  Commercial  Accident  Co..  243  111.  43  (1909);  People  v  Hibernian  Bank- 
ing Ass'n.,  245  111.  522"  (1910);  Sixby  v  Chicago  City  Rv.  Co..  260  111.  478 
nftisv  King-sbury  v  Sperry.  119  111.  279  (1S87);  Dawson  v  Eu?tice.  148  111. 
B46    (1894). 


Article  6,  Sections  30,   31  179 

Class  legislation.  This  section  does  not  operate  to  prohibit  the  General 
Assembly  from  enacting  laws  relating  to  courts  which  are  applicable  only 
to  situations  within  a  particular  class,  provided  that  the  law  applies  alike 
to  all  in  that  class,  and  that  there  is  a  reasonable  basis  for  the  classi- 
fication. For  instance,  an  act  prescribing  a  special  rule  of  evidence  in 
proceedings  under  the  Torrens  Land  Title  Act  was  sustained  because  it 
applied  equally  to  all  cases  in  that  system  of  adjudicating  titles  to  real 
estate.  Conversely,  an  act  requiring  the  public  administrator  to  be  appointed 
as  administrator  of  the  estate  of  non-resident  intestates  leaving  property 
in  counties  having  a  population  of  more  than  200,000  inhabitants,  while 
any  person  might  receive  such  an  appointment  in  other  counties,  was  held 
void  as  being  based  upon  an  arbitrary  and  unreasonable  classification."^ 
(S-ee  discussion  article  4,  section  22,  subheading,  "Special  privileges  and 
immunities.") 


Rules  of  court.     The  provisions  of  this  section  apply  only  to  legislation, 
and  not  to  rules  of  court  regulating  practice.^'' 


Section  30.  The  General  Assembly  may,  for  cause  entered  on 
the  journals,  upon  due  notice  and  opportunity  of  defense,  remove 
from  office  any  judge,  upon  concurrence  of  three-fourths  of  all  the 
members  elected,  of  each  house.  All  other  officers  in  this  article 
mentioned,  shall  be  removed  from  office  on  prosecution  and  final 
conviction,  for  misdemeanor  in  office. 


The  Attorney  General  has  ruled  that  the  last  clause  of  this  section 
includes  justices  of  the  peace  and  police  magistrates.^*  (See  discussion  ar- 
ticle 5,  section  12,  subheading,   "Power  of  Governor"). 


Section  31.  All  judges  of  courts  of  record,  inferior  to  the  Su- 
preme Court,  shall,  on  or  before  the  first  day  of  June,  of  each  year, 
report  in  writing  to  the  judges  of  the  Supreme  Court,  such  defects 
and  omissions  in  the  law  as  their  experience  may  suggest;  and  the 
judges  of  the  Supreme  Court  shall,  on  or  before  the  first  day  of  Jan- 
uary, of  each  year,  report  in  writing  to  the  Governor  such  defects 
and  omissions  in  the  Constitution  and  laws  as  they  may  find  to  exist, 
together  with  appropriate  forms  of  bills  to  cure  such  defects  and 
omissions  in  the  laws.  And  the  judges  of  the  several  circuit  courts 
shall  report  to  the  next  General  Assembly  the  number  of  days  they 
have  held  court  in  the  several  counties  composing  their  respective 
circuits,  the  preceding  two  years. 


s^Waugh  v  Glos,  246  111.  604  (1910);  Strong  v  Dignan,  207  111.  385  (1904); 
Knickerbocker  v  People,  102  111.  218  (1882);  Tissier  v  Rheln,  130  111.  110  (1889); 
Chicago  Terminal  Ry.  Co.  v  Greer,  223  111.  104  (1906);  People  v  McGoorty, 
270   111.    610    (1916). 

^=*  Hinckley   v  Dean,    104    111.    630    (1882). 

M  Report   Attorney    General    1914,    pp.    161,    1200. 


180  Article  6,  Section  32 

In  January,  1869,  the  General  Assembly  passed  an  act  requiring  the 
judges  of  the  circuit  courts  to  report  to  the  judges  of  the  Supreme  Court, 
by  September  of  that  year,  the  redundancies,  omissions,  inconsistencies  and 
imperfections  in  the  statutes,  together  with  bills  remedying  these  defects. 
The  Supreme  Court  judges  were  to  examine  these  reports  and  bills,  and  to 
submit  those  which  they  approved  either  to  the  General  Assembly  or  to  the 
statutory  revision  commission,  should  one  be  established.  The  circuit 
judges  were  to  receive  $1,000  each,  for  these  services.  It  was  understood, 
at  the  time,  that  the  arrangement  was  primarily  a  scheme  to  increase 
the  salaries  of  the  circuit  judges,  which,  as  fixed  by  the  constitution  of 
1848,  were  very  low.  A  statutory  revision  commission  was  established  in 
March,  1869.  Sixteen  of  the  twenty-nine  circuit  judges  reported  defects 
in  the  laws  and  suggested  remedies  therefor.  All  of  the  judges  received  the 
extra  compensation.  The  Supreme  Court  judges  approved  some  of  these 
reports  and  bills  and  forwarded  nearly  all  of  them  to  the  statutory  revision 
commission.  Most  of  this  material  dealt  with  substantive  changes  in  the 
practice  act  and  criminal  code.  The  commission  complied  with  some  of 
the  proposed  changes,  and  disregarded  those  which,  in  their  opinion, 
embodied    undesirable    innovations.^^ 

The  constitutional  convention  of  1869-70,  by  the  provisions  of  the 
section  under  consideration,  intended  to  perpetuate  these  functions  of  the 
courts.^"  The  judges  have  not,  however,  complied  therewith,  to  any  great 
extent.  One  of  the  few  instances  when  the  judges  have  done  so,  occurred 
in  March,  1919,  when  Justice  James  H.  Cartwright  of  the  Supreme  Court 
sent  two  communications,  one  his  own,  and  the  other  that  of  Judge  Charles 
M.  Thomson,  of  the  circuit  court  of  Cook  County,  to  the  Governor,  indicating 
defects  in  the  real  estate  and  divorce  statutes,  together  with  bills  em- 
bodying suggested  remedies.  These  tlie  Governor  forwarded  to  the  General 
Assembly.^'^ 

In  1909,  after  several  primary  election  laws  had  been  held  unconsti- 
tutional, the  Governor  requested  the  judges  of  the  Supreme  Court  either  to 
indicate  the  defects  and  omissions  in  the  laws  relating  to  the  nomination  of 
candidates  for  public  office,  and  to  submit  bills  to  remedy  these  defects,  or 
to  draft  a  new  primary  election  bill  which  would,  in  their  opinion,  be  con- 
stitutional. The  judges  replied  that  under  the  provisions  of  this  section  the 
Governor  was  without  power  to  require  either  the  judges  of  the  Supreme 
Court  as  individuals,  or  the  Supreme  Court,  as  a  court,  to  furnish  informa- 
tion or  bills  of  this  character.  The  judges  said  that  under  these  pro- 
visions the  responsibility  of  determining  when  it  becomes  the  duty  of  the 
judges  of  the  Supreme  Court  to  make  a  report  of  defects  and  omissions 
in  the  laws  rests  with  the  judges  themselves,  and  that  such  a  duty 
does  not  arise  except  when  a  case  has  come  before  the  court  in  regular 
course,  and  an  act  of  the  General  Assembly  has  been  held  to  be  either 
invalid,  inoperative  or  ineffective.  Then  the  judges  may,  in  their  discretion 
determine  to  advise  the  General  Assembly,  through  the  Governor,  of  the 
defects  and  omissions  in  that  act,  and  of  the  changes  necessary  to  remedy 
them.  The  judges  said  that  it  is  not  the  duty  of  the  judges  to  aid  in  orig- 
inating legislation,  either  by  determining  the  constitutionality  thereof  or 
by  preparing  bills  therefor.  An  opinion  of  the  type  requested,  it  was  said, 
would,  in  any  event,  be  of  no  binding  effect,  should  a  case  come  before  the 
Supreme  Court,  in  due  course,  involving  the  questions  considered  in  that 
opinion.^^ 


Section  32.     All  officers  provided  for  in  this  article  shall  hold 
their  offices  until  their  successors  shall  be  qualified,  and  they  shall, 


^  See   Statutory  Revision  in   Illinois,   pp.   26,   27-28,    32. 

-"Debates,    p.    1185. 

■'~  Senate  Journal,   March   25,   1919. 

"•'Correspondence    between   Governor   and   Supreme   Court,    243    111.    9    (1909). 


Article  6,  Section  32  181 

respectively,  reside  in  the  division,  circuit,  county  or  district  for 
which  they  may  be  elected  or  appointed.  The  terms  of  office  of  all 
such  officers,  where  not  otherwise  prescribed  in  this  article,  shall  be 
four  years.  All  officers,  where  not  otherwise  provided  for  in  this  ar- 
ticle, shall  perform  such  duties  and  receive  such  compensation  as 
is,  or  may  be,  provided  by  law.  Vacancies  in  such  elective  offices 
shall  be  filled  by  election;  but  where  the  unexpired  term  does  not 
exceed  one  year  the  vacancy  shall  be  filled  by  appointment,  as  fol- 
lows :  Of  judges,  by  the  Governor ;  of  clerks  of  courts,  by  the  court 
to  which  the  office  appertains,  or  by  the  judge  or  judges  thereof; 
and  of  all  such  other  offices,  by  the  board  of  supervisors,  or  board  of 
county  commissioners,  in  the  county  where  the  vacancy  occurs. 


Officers  holding  over.  The  Supreme  Court  has  suggested,  and  the  At- 
torney General  has  ruled  that  the  first  clause  of  this  section  authorizes  and 
requires  state's  attorneys,  justices  of  the  peace,  police  magistrates,  and  con- 
stables to  hold  office  and  to  exercise  the  powers  thereof  after  either  their 
resignation  or  the  expiration  of  the  official  term,  until  the  successor  has  qual- 
ified.^' 


Terms  of  office.  It  has  been  held  that  the  General  Assembly  is  free  to 
prescribe  the  length  of  the  terms  of  office  of  judges  of  city  courts,  for  the 
reason  that  judges  of  city  courts  are  not  officers  whose  terms  of  office  are 
otherwise  provided  for  in  this  article,  within  the  meaning  of  this  section. 
Apparently,  the  provision  of  this  section,  with  reference  to  four  year  terms, 
applies  only  to  justices  of  the  peace,  police  magistrates  and  constables.^" 


Compensation  of  state's  attorneys.  This  section  has  been  construed  to 
authorize  the  General  Assembly  to  fix  the  compensation  of  state's  attorneys, 
since  their  concpensation  is  not  otherwise  provided  for  in  this  article."  (See 
discussion  article  10,  section  10,  subheading,  "County  officers"). 


Filling  vacancies.  The  Attorney  General  has  ruled  that  the  provisions 
of  this  section  as  to  the  filling  of  vacancies  are  mandatory;  that  the  clause 
relating  to  the  method  of  filling  vacancies  in  the  offices  "of  judges"  applies 
to  judges  of  the  superior  court  of  Cook  County  and  of  county  courts;  and 
that  the  clause  relating  to  the  method  of  filling  vacancies  "of  all  such  other 
offices,"  applies  to  state's  attorneys,  justices  of  the  peace  and  police  magis- 
trates.*^ 

In  1917,  a  bill  was  passed  by  the  General  Assembly  authorizing  the  Gov- 
ernor to  fill  vacancies  in  the  office  of  probate  judge  by  appointment  where  the 
unexpired  term  was  for  more  than  one  year  and  for  less  than  two  years.  The 
Attorney  General  expressed  a  doubt  as  to  the  constitutionality  of  this  bill,  in 
view  of  the  provision  of  the  section  under  consideration,  that  "vacancies  in 
such  elective  offices  shall  be  filled  by  election;  but  where  the  unexpired  term 
does  not  exceed  one  year  the  vacancy  shall  be  filled  by  appointment."  He 
suggested,  however,  that  the  Supreme  Court  might  hold  the  bill  valid,  on  the 


sa  People  V  Supervisors,  100  111.  33  (1881);  Report  Attorney  General  1912, 
p.    1290;    1914,    pp.    436,    1065;    1916.    p.    926. 

«o  People  V   Sweitzer,   280   111.   436    (1917);  People  v  Olson,   245   111.   288    (1910). 

«iHoyne   v   Danish,    264    111.    467    (1914);    Butzow   v    Kern.    264    111.    498    (1914). 

"-Report  Attorney  General  1910.  p.  171;  1916.  p.  122;  1915,  p.  785;  1914,  p. 
165;    1900,    p.    239;    1912,    p.    693;    1912,    pp.    694,    699. 


182  Article  6,  Section  33 

ground  that  a  judge  of  a  probate  court  held  an  office  created,  not  by  the  con- 
stitution, but  by  the  legislature,  to  which,  therefore,  this  constitutional  provi- 
sion would  not  apply.  The  Governor  vetoed  the  bill  because,  in  his  view,  it 
clearly  contravened  the  provision  quoted  from  the  section  under  discussion,''^' 


Section  33.  All  process  shall  run;  In  the  name  of  the  People 
of  the  State  of  Illinois ;  and  all  prosecutions  shall  be  carried  on ;  In 
the  name  and  by  the  authority  of  the  People  of  the  State  of  Illinois ; 
and  conclude ;  Against  the  peace  and  dignity  of  the  same. 

"Population,"  whenever  used  in  this  article,  shall  be  determined 
by  the  next  preceding  census  of  this  State,  or  of  the  United  States. 


In  general.  The  provisions  of  the  first  paragraph  of  this  section 
appeared,  substantially  in  their  present  form,  in  section  7  of  article  4  of  the 
constitution  of  1818,  and  in  section  26  of  article  5  of  the  constitution  of  1848. 
The  following  discussion,  therefore,  is  based  upon  the  judicial  interpreta- 
tions of  similar  provisions  in  all  three  constitutions. 


Process.  The  term  "all  process,"  as  used  in  this  section,  has  been  con- 
strued to  include  writs  of  sci7'e  facias,  summons,  judgment,  execution,  fee 
bills,  the  final  process  of  courts  of  equity,  such  as  executions,  writs  of  attach- 
ment, sequestration  and  assistance,  and  an  order  of  a  court  of  equity  direct- 
ing a  person's  arrest  for  contempt  of  court.''^  The  Supreme  Court  has  said 
that  the  term  included  all  writs  issued  at  the  common  law  in  the  name  of- 
the  King  and  elII  writs  since  created  as  the  equivalent  thereof,  but  that  the 
term  did  not  include  writs  issued  in  a  purely  statutory  proceeding  unknown 
to  the  common  law.  In  this  case  the  court  held  that  the  term  "process"  did 
not  include  a  copy  of  a  tax  judgment  certified  to  the  collector  as  authority  for 
the  sale  of  real  estate  for  taxes."^  The  Attorney  General  has  ruled,  however, 
that  the  term  includes  an  order  issued  by  the  Governor  to  carry  out  his  com- 
mutation of  the  sentence  of  a  person  convicted  of  murder,  which  is  directed 
to  a  sheriff,  commanding  him  to  remove  the  prisoner  from  a  county  jail  to  a 
penitentiary,  and  commanding  the  warden  thereof  to  receive  and  confine  him 
for  life.^" 

The  first  clause  of  this  section  has  been  construed  to  be  mandatory.  Pro- 
cess which  does  not  comply  therewith  is  void."'  A  writ  has  been  held  to  com- 
ply with  this  provision,  however,  which  omitted  the  words  "In  the  name  of 
the."  It  has  also  been  held  that  the  required  words  need  not  necessarily  ap- 
pear on  the  margin  of  the  writ  but  that  it  is  sufficient  if  they  appear  in  the 
body  of  the  writ."*     (See  discussion  article  4,  section  11.) 


Prosecutions.  It  has  been  held  that  the  term  "prosecutions,"  as  used 
in  this  section,  is  limited  to  prosecutions  of  a  public  or  criminal  nature,  where 
the  formal  accusation  of  offenders  is  made  either  by  presentment,  informa- 


•« "Report  Attorney  General  1918,  p.  193;  Veto  Messages  1917,  p.   32. 

•^McFadden  v  Fortier,  20  111.  509  (1858);  Knott  v  Pepperdine,  63  111.  219 
(1872);  I.  C.  Ry.  Co.  v  Herr,  54  111.  356  (1870);  Reddick  v  Administrators, 
7  111.  670  (1845);  Armsby  v  People,  20  111.  155  (1858);  Leighton  v  Hall,  31  111. 
108    (1863). 

<«  Curry   v   Hlnman,    11    111.    420    (1849). 

«"  Report    Attorney    General    1900,    p.    186. 

6'Sidwell   V   Schumacker,    99    111.    426    (1881). 

«8  Knott  v  Pepperdine,   63   111.  219    (1872);   Harris  v  Jenks,   3  III.  475    (1840). 


Article  6,  Section  33  183 

tion  or  indictment.  It  includes  an  information  in  the  nature  of  quo  warranto.^ 
The  Supreme  Court  held  that  the  term  does  not  include  a  so-called  "infor- 
mation" in  a  statutory  proceeding  before  a  justice  of  the  peace  to  collect  a 
penalty  for  malfeasance  in  office,  where  the  statute  merely  required  a  com- 
plaint which  could  have  been  made  orally.""  Nor  does  it  include  an  action  of 
debt  to  recover  a  penalty  for  violation  of  an  act  regulating  the  practice  of 
medicine.'^  Similarly,  a  special  statutory  proceeding  in  equity,  begun  by  the 
Attorney  General  upon  information,  to  dissolve  a  mutual  benefit  association,'- 
and  a  proceeding  to  disbar  an  attorney  from  practice  in  the  circuit  court," 
have  been  held  not  to  be  embraced  within  the  term. 

The  second  clause  of  this  section,  like  the  first,  has  been  held  to  be  manda- 
tory. Prosecutions  which  do  not  comply  therewith,  as  to  both  beginning  and 
ending,  are  void.'*  An  information  has  been  held  to  comply  with  this  provi- 
sion, however,  which  began  as  follows:  "who  sues  for  the  People  of  the  State 
of  Illinois  in  this  behalf  and  for  said  people,  and  in  the  name  and  by  the 
authority  thereof,  etc."'^  Indictments  have  been  held  sufficient  which  con- 
cluded "Against  the  peace  and  dignity  of  the  same  People  of  the  State  of 
Illinois,"  and  "Against  the  peace  and  dignity  of  the  People  of  the  State  of 
Illinois."^^     (See  discussion  article  4,  section  11.) 

69  Donnelly  v  People,  11  111.  552  (1850);  Parris  v  People,  76  III  274  (1875); 
People  V  Larsen.    265   111.   406    (1914). 

70  Newton  v   People,    72   111.   507    (1874). 

71  People   V   Gartensteln,    248    111.    546    (1911). 
"Indemnity  Association  v  Hunt,   127   111.   257    (1889). 
73Moutray    v    People,    162    111.    194     (1896). 

7*Whitesides  v  People,  1  111.  21  (1819);  Donnelly  v  People,  11  111.  552  (1850); 
Parris   v   People,    76    111.    274    (1875). 

^5  People  V  Larsen,  265  111.  406   (1914). 

^«Chesshire  v  People,  116  111.  493  (1886);  Zarresseler  v  Pecple,  17  111.  101 
(1855). 


ARTICLE  VII— SUFFRAGE 


Section  1.  Every  person  having  resided  in  this  State  one  year, 
in  the  county  ninety  days,  and  in  the  election  district  thirty  days 
next  preceding  any  election  therein,  who  was  an  elector  in  this  State 
on  the  first  day  of  April,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  forty-eight,  or  obtained  a  certificate  of  naturalization, 
before  any  court  of  record  in  this  State,  prior  to  the  first  day  of  Jan- 
uary, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sev- 
enty, or  who  shall  be  a  male  citizen  of  the  United  States,  above  the 
age  of  twenty-one  years,  shall  be  entitled  to  vote  at  such  election. 


Guaranty  of  right  to  vote.  This  section  guarantees  the  right  to  vote 
of  every  person,  possessing  the  qualifications  named  herein,  who  has  not  been 
disfranchised  by  conviction  for  an  infamous  crime  under  section  7  of  this 
article.  Any  deprivation  of  this  right  violates  this  provision  of  the  constitu- 
tion. Thus  in  the  case  of  People  v  Strassheim,^  a  primary  election  act  was 
held  invalid,  when  construed  in  connection  with  the  registration  law,  be- 
cause, in  effect,  it  deprived  persons  becoming  21  within  four  months  before 
the  election,  or  persons  naturalized  within  that  period,  or  their  right  to 
vote.=^  But  in  the  case  of  People  v  Hoffman''  it  was  held  that  the  require- 
ment of  registration  three  weeks  before  an  election  was  not  an  unconstitu- 
tional requirement,  although  voters  becoming  qualified  in  this  period  would 
thereby  be  deprived  of  their  vote.  The  reasoning  of  the  court  in  this  case 
was  that  the  fact  that  the  constitution  mentioned  several  qualifications  for 
electors  implies  that  the  General  Assembly  should  have  the  power  to  pro- 
vide machinery  for  the  determination  of  these  qualifications,  and  the 
registration  act  is  a  reasonable  means  of  determining  who  are  qualified 
voters.* 

It  may  here  be  noted  however,  that  an  idiot  or  distracted  person  cannot 
vote,  although  he  may  possess  all  of  the  qualifications  named  in  the  con- 
stitution.'' 

In  this  connection  it  must  be  noted  that  section  18  of  article  2  provides 
that  all  elections  shall  be  free  and  equal  and  this  provision  is,  to  some  ex- 
tent, a  guaranty  similar  to  that  contained  in  the  section  under  discussion. 
(See  discussion  article  2,  section  18;   article  7,  section  7.) 


1240    111.    279    (1909):    see   Sanner  v   Patton,    1.^.^    111.   5BR    (1895). 

2  See    Rouse    v    Thompson.    228    111.    522    (1907). 

•■*  116    111.    587    (1886). 

^  For  other  cases  holding  that  Qualified  voters  were  not  denied  the  right 
of  suffrage,  fsee  People  v  Nelson.  133  111.  565  (1890):  People  v  Edmands.  252 
111.  108  (19T1);  Christie  v  People.  206  111.  337  (1903);  Choisser  v  York.  211 
111.    56    (1904). 

^  Behrensmeyer  v  Kreitz,  135  111.  591  (1891):  Welsh  v  Shumway,  232  111. 
54    (1908). 

185 


186  Article  7,  Section  1 

Residence.  The  word  "resided",  as  used  in  this  section,  means  "hav- 
ing a  permanent  abode".^  Whether  or  not  an  abode  is  permanent  is  largely 
a  question  of  intention, — that  is  when  a  person  has  a  home  at  a  given  place, 
with  no  present  intention  of  removing  therefrom,  he  is  generally  held  to  be 
a  resident  of  that  place.^  His  temporary  absence,  without  any  intention  of 
removing  permanently,  will  not  deprive  him  of  his  residence  there.*  Nor 
will  an  intention  to  move  to  another  place,  if  certain  events  occur,  operate  to 
deprive  a  person  of  his  residence.  Thus  a  man  was  held  to  be  a  resident 
of  a  town  even  though  he  intended  to  move  away,  if  he  should  not  be  able 
to  find  work  in  that  town.* 

The  question  of  the  residence  of  tnarried  women  for  purposes  of  suffrage 
has  given  rise  to  some  difficulty  because  of  the  common  law  principle  that 
the  wife's  domicile  is  constructively  that  of  her  husband.  The  Attorney 
General  has  said  that  this  common  law  rule  has  no  application  to  the 
problem  of  determining  the  wife's  residence  for  the  purposes  of  suffrage." 
In  one  case  a  husband  resided  in  the  county  for  more  than  ninety  days 
but  his  wife  resided  in  the  county  but  65  days  prior  to  the  election.  The 
Supreme  Court  held  that  the  wife's  vote  should  be  rejected  in  this  case, 
since,  while  the  husband's  domicile  is  constructively  the  wife's,  actual  resi- 
dence is  necessary  for  suffrage  purposes."  But  it  must  be  noted  that  a 
married  woman  cannot  have  the  intention  to  acquire  a  residence  apart 
from  that  of  her  husband,  if  she  intends  to  return  to  the  residence  of  her 
husband.  Thus  where  a  married  woman  lived  in  an  election  district  more 
than  thirty  days  but  her  husband  resided  elsewhere  in  the  county  it  was 
held  that  she  could  not  vote  in  the  district  where  she  was  living  since  she 
intended  to  return  to  her  husband  and  her  residence  was  therefore  not  in 
this  election  district.*^ 

The  Attorney  General  has  pointed  out  that  it  is  not  necessary  that  an 
elector  shall  have  been  naturalized  for  one  year  or  for  any  period  before 
he  may  vote.  All  that  is  necessary  is  that  he  shall  have  resided  in  the 
political  subdivisions  for  the  periods  named  in  the  constitution.^^ 


Absentee  voting  law.  The  question  has  arisen  whether  this  section  of 
the  constitution  prohibits  an  absentee  voting  law.  The  specific  question 
is  whether  the  provision  as  to  residence  contemplates  that  suffrage  shall 
be  exercised  by  the  voter  in  person,  at  the  voting  place  in  the  precinct  or 
district  in  which  he  resides.  The  Supreme  Court  has  never  passed  upon 
this  question.  In  1912  the  Attorney  General  indicated  that  he  felt  some 
doubt  as  to  whether  or  not  an  absentee  voting  law  would  be  constitutional 
under  this  section,  although,  upon  the  consideration  of  decisions  from 
other  states,  he  was  perhaps  inclined  to  the  view  that  such  an  act  would 
be  a  valid  enactment.'*  In  1917  the  General  Assembly  passed  an  act  pro- 
viding for  absentee  voting  by  persons  in  the  military  or  naval  service  of 
the  United  States.  Upon  that  occasion  the  Attorney  General  said  that 
while  he  had  some  doubts  as  to  the  constitutionality  of  such  a  measure,  his 
doubts  were  not  serious  enough  to  compel  him  to  advise  against  the  passage 
of  the  act."  It  has  been  suggested  that  section  4  of  this  article  authorizes 
an  absentee  voting  law  so  far  as  such  a  law  respects  soldiers  and  sailors 
in  the  service  of  the  federal  government.^® 


"Johnson    v    People,    94    III.    505    (1880);    Spragins    v   Houghton,    3    111.    377 
(1840). 

^  Welsh    V    Shumway,    232    111.    54    (1908);    Beardstown    v    Virginia,    81    111. 
541     (1876);    Dorset    v    Brigham,    177    111.    250     (1898). 

8  Behrensmeyer  v   Kreitz,   135   111.   591    (1891). 
» Welsh   V  Shumway,   232  111.   54    (1908). 
i«  Report    Attorney    General    1918,    p.    283. 
"Dorsey  v  Brigham,   177    111.   250    (1898). 
i^Dorsey  v   Brigham,   177   111.    250    (1898). 
"Report  Attorney  General    (1912),  p.   413. 
"Report  Attorney   General   1912,   p.   1266. 
^5  Report  Attorney   General   1918.    pp.    300,    345. 
i«  Report  Attorney  General   1918,   p.   300. 


Article  7,  Section  1  187 

Election  district.  The  Supreme  Court  has  said  that  the  words  "elec- 
tion district"  have  acquired  no  settled  meaning.  Sometimes  these  words 
are  used  to  designate  a  voting  precinct  and  at  times  they  are  used  to 
describe  a  larger  or  a  smaller  district  than  a  voting  precinct,"  In  the 
case  of  People  v  Markiewicz^^  it  was  held  that  for  the  purposes  of  town 
elections,  the  entire  town  is  to  be  considered  as  one  voting  district  as 
respects  the  qualifications,  of  voters,  although  there  may  be  several  polling 
places  in  the  town.  A  voter  who  has  resided  in  the  town  for  thirty  days 
and  v/ho  has  all  the  other  qualifications  necessary  to  make  him  a  legal 
voter  may  vote  in  the  town,  regardless  of  the  fact  that  he  has  not  resided 
in  the  particular  election  district  or  voting  precinct  for  that  period.  The 
reasoning  of  the  court  in  this  case  was  that  it  was  never  intended  that 
any  voter  should  be  qualified  to  take  part  in  a  town  meeting  and  not  be 
qualified  to  assist  in  the  election  of  town  officers. 


Unnaturalized  aliens.  The  clause  giving  the  suffrage  to  persons  who 
were  electors  in  this  state  on  the  first  day  of  April,  1848  was  inserted 
to  provide  for  the  cases  of  certain  unnaturalized  aliens,  who  were  per- 
mitted to  vote  under  the  constitution  of  1848.  Under  the  constitution  of  1818 
citizenship  was  not  a  requisite  to  suffrage.'^  Under  that  constitution,  an  un- 
naturalized alien,  with  the  requisite  residential  qualifications  might  vote. 
When  the  constitution  of  1848  (article  6,  section  1)  made  citizensMp  a  qual- 
ification for  suffrage  it  provided  that  unnaturalized  aliens  who  were  residents 
of  the  state  at  the  time  of  the  adoption  of  that  constitution  (April  1,  1848) 
might  vote  and  this  provision  was  carried  forward  into  the  constitution  of 
1870.  However,  it  has  been  held  that  persons  who  were  foreign  born,  minor 
children  of  such  unnaturalized  alien  electors  on  April  1,  1848  may  not  vote 
under  this  provision  of  the  constitution,  since  these  minors  were  not  electors 
on  that  date.-" 


Naturalization  in  county  courts.  When  the  constitutional  convention 
of  1869-70  assembled,  some  doubt  existed  as  to  whether  naturalization 
certificates  which  had  been  granted  by  county  courts  were  effectual.  The 
provision  giving  the  suffrage  to  those  who  had  obtained  certificates  of 
naturalization  before  any  court  of  record  in  the  state  before  January  1, 
1870  was  adopted  to  remove  this  doubt  so  far  as  the  right  of  these  persons 
to  vote  was  concerned.  (Debates,  p.  1289.)  But  in  1875  it  was  held  that 
naturalization  before  a  county  court  was  valid  and  legal  for  all  purposes 
without  reference  to  this  provision  of  the  constitution.^^ 


Woman  Suffrage.  The  provision  of  this  section  limiting  the  suffrage 
to  male  citizens  is  held  to  apply  only  to  officers  created  by,  or  elections 
prescribed  by  the  constitution.  The  General  Assembly  may  authorize 
women  to  vote  for  all  other  officers  and  in  all  other  elections.  In  1891 
the  General  Assembly  passed  an  act  authorizing  women  to  vote  for  any 
school  officer  elected  under  the  general  or  special  school  laws  of  the  state. 
In  People  v  English^^  it  was  held  that  this  act  could  not  constitutionally 
give  women  the  right  to  vote  for  county  superintendents  of  schools,  since 


"People  v  Markiewicz,  225  111.  563  (1907);  Report  Attorney  General  1916, 
p.    780. 

^'*225  111.  563  (1907);  but  see  Fahey  v  City  of  Bloomington  268  111.  386 
(1915):    People   v   Simoson    168   111.    127    (1897). 

"  Spraprins    v^   Houerhton.    3    111.    377    (1840). 

'■0  Beardstown   v    Virginia.    76    111.    34    (1875). 

=^  People  V  McGowan.  77  111.  644  (1875):  but  see  Knox  County  v  Davis.  63 
111.   405    (1872):   Beardstown  v  Virginia  76  111.   34    (1875) 

22  139    111.    622    (1892). 


188  Article  7,  Section  2 

that  oflBcer  was  named  in  section  5  of  article  8  of  the  constitution  and,  must 
therefore  be  elected  by  the  male  electors  prescribed  in  section  1  of  article 
7  of  the  constitution.  In  the  case  of  Plummer  v  Yost,^^  decided  in  1893, 
it  was  held  that  this  act  was  valid  insofar  as  it  gave  women  the  right  to 
vote  for  a  member  of  the  board  of  education,  since  that  office  is  purely 
a  creation  of  the  General  Assembly  and  is  not  mentioned  in  the  constitution. 

In  1913  the  General  Assembly  passed  an  act  providing  that  women 
might  vote  for  presidential  electors,  members  of  the  state  board  of 
equalization,  clerk  of  the  appellate  court,  county  collector,  county  surveyor, 
members  of  the  board  of  assessors,  members  of  the  board  of  review,  sani- 
tary district  trustees,  and  for  all  officers  of  cities,  villages  and  towns  (ex- 
cept police  magistrates),  and  upon  all  questions  or  propositions  submitted 
to  a  vote  of  the  electors  of  such  municipalities  or  other  political  subdi- 
visions of  the  state.  The  same  act  provided  that  women  might  vote  for 
the  following  township  officers:  supervisor,  town  clerk,  assessor,  collector 
and  highway  commissioner,  and  might  also  participate  and  vote  in  all 
annual  and  special  town  meetings.  In  the  case  of  Scown  v  Czarnecki** 
this  act  was  upheld  insofar  as  it  concerned  the  qualifications  of  electors 
for  the  several  officers  named,  since  these  officers  are  not  mentioned  in 
the  constitution.  But  the  court  held  that  the  provision  authorizing  women 
to  vote  upon  all  questions  or  propositions  submitted  to  a  vote  of  the 
electors  of  municipalities  or  political  subdivisions  of  the  state  was  invalid 
insofar  as  it  purported  to  give  women  the  right  to  vote  in  referendum 
elections  prescribed  by  the  constitution,  such  as  the  division  of  a  county 
or  the  removal  of  a  county  seat.  As  to  referendum  elections  not  prescribed 
by  the  constitution  the  act  was  held  valid.  Later  it  was  held  that  women 
were  not  entitled  under  this  act  to  vote  for  judges  of  city  courts  or  judges  of 
the  municipal  court  of  Chicago,  since  the  creation  of  these  offices  is  author- 
ized by  the  constitution.''  It  will  thus  be  seen  that  while  worn  en  mav  be 
authorized  to  vote  for  the  officers  named  in  the  act  of  1913,  they  may  not  be 
authorized  to  vote  for  constitutional  officers,  such,  for  example,  as  the  Gov- 
ernor, and  members  of  the  General  Assembly. 

In  the  case  of  People  v  Byers-"  the  Supreme  Court  held  that  the  woman 
suffrage  act  did  not  authorize  women  to  vote  for  delegates  to  national  nomi- 
nating conventions  or  party  committeemen,  although  it  might  well  have  done 
so,  under  the  constitution. 

As  previously  noted,  the  woman  suffrage  act  of  1913  gives  women  the 
right  to  vote  for  presidential  electors.  The  General  Assembly  has  the  power 
to  give  women  this  right,  since  the  constitution  of  the  United  States  pre- 
scribes that  presidential  electors  shall  be  chosen  in  such  manner  as  the  sev- 
eral state  legislatures  shall  direct.  (United  States  Constitution,  article  2, 
section  2).  However,  women  may  not  be  authorized  to  vote  for  United 
States  Senators  or  members  of  the  federal  House  of  Representatives  since 
these  officers  must  be  elected  by  electors,  having  the  "qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  state  legislatures."  (United 
States  Constitution,  article  1,  section  2,  and  the  seventeenth  amendment.) 


Section  2.     All  votes  shall  be  by  ballot. 


The  essential  right  guaranteed  by  this  section  is  not  written  or  printed 
ballots,  but  secrecy  in  voting.  It  is  therefore  held  that  a  statute  providing 
for  voting  machines  does  not  violate  this  section,  since  this  method  of  voting 


^144   111.   68    (1893). 
2*264   111.   305    (1914). 

25  Franklin  v  Westfall,   273   111.   402    (1916);   Wells   v   Robertson,    277   111.    534 
(1917). 

2«271  111.  600   (1916);  see  People  v  Militzer,  272  111.  387   (1916). 


Article  7,  Sections  3-6  189 

preserves  the  essential  element  of  secrecy."  It  has  been  held,  however,  that 
the  production  of  ballots  for  the  inspection  of  a  grand  jury  does  not  violate 
the  secrecy  of  the  ballot  required  by  this  section  of  the  constitution  since 
this  provision  does  not  contemplate  secrecy  after  the  ballots  have  been 
deposited  in  the  ballot  box.^* 


Section  3.  Electors  shall,  in  all  cases  except  treason,  felony, 
or  breach  of  the  peace,  be  privileged  from  arrest  during  their  attend- 
ance at  elections,  and  in  going  to  and  returning  from,  the  same.  And 
no  elector  shall  be  obliged  to  do  military  duty  on  the  days  of  elec- 
tion, except  in  time  of  war  or  public  danger. 


Section  4,  No  elector  shall  be  deemed  to  have  lost  his  res- 
idence in  this  State  by  reason  of  his  absence  on  the  business  of  the 
United  States,  or  of  this  State,  or  in  the  military  or  naval  service  of 
the  United  States. 


In  the  opinion  of  the  Attorney  General  this  section  does  not  prevent  a 
government  employee  who  desires  to  abandon  his  residence  in  the  state  and 
acquire  a  residence  elsewhere  from  doing  so.  It  merely  provides  that  the 
fact  of  his  absence  on  government  or  military  service  shall  not  in  itself 
operate  as  an  abandonment  of  residence  in  this  state.^* 

The  Attorney  General  has  also  suggested  that  the  absentee  voting  law 
for  soldiers  and  sailors  may  be  justified  under  this  section.^''  (See  discussion 
article  7,  section  1,  subheading,  "Absentee  voting  law.") 


Section  5.  No  soldier,  seaman  or  marine  in  the  army  or  navy 
of  the  United  States,  shall  be  deemed  a  resident  of  this  State  in  con- 
sequence of  being  stationed  therein. 


Section  6.  No  person  shall  be  elected  or  appointed  to  any 
office  in  this  State,  civil  or  military,  who  is  not  a  citizen  of  the 
United  States,  and  who  shall  not  have  resided  in  this  State  one  year 
next  preceding  the  election  or  appointment. 


Except  as  otherwise  provided  in  the  constitution,^^  this  section  fixes  the 
qualifications  of  all  officers  provided  for  in  that  instrument.  The  Supreme 
Court  has  held  that  this  provision   is  a  limitation  upon  the  power  of  the 


27  I^vnch  V  Mallev.  215  Til.  574   (1905):  but  see  Veto  Message  No.  10. 

2«  People    V    Lueders.    269     111.    205     (1915). 

2«  Report   Attorney    General    1916.    p.    830. 

8»  Report   Attorney   General    1918.    pp.    300.    345. 

31  See  People  v  Election  Commissioners,   221  111.  9    (1906). 


190  Article  7,  Section  7 

General  Assembly  and  that  body  has  no  power  or  authority  except  as  other- 
wise provided  in  the  constitution  to  add  any  further  qualifications  for  consti- 
tutional officers.  Thus,  in  the  case  of  People  v  McCormick^^  it  was  held  that 
a  statute,  requiring  a  person  elected  county  commissioner  of  Cook  County  to 
have  been  a  resident  of  the  county  for  five  years  preceding  his  election,  vio- 
lated this  section  of  the  constitution,  since  it  imposed  additional  qualifica- 
tions for  a  constitutional  office.  (See  discussion  article  6,  section  17;  article 
10,  section  6;  article  4,  section  8,  subheading,  "Qualifications  of  members  of 
the  General  Assembly".) 

The  Attorney  General  has  taken  the  view  that  a  license  to  practice  law 
is  not  a  necessary  qualification  for  t>he  office  of  state's  attorney,  since  that 
officer  is  a  constitutional  officer,  and  his  sole  qualifications  are  those  specified 
by  this  section.^* 

When  an  office  is  created  by  statute,  however,  it  is  wholly  within  the 
power  of  the  General  Assembly  and  additional  qualifications  may  be  imposed 
by  that  body.-**  However,  the  Attorney  General  has  ruled  that  statutory  oflfi- 
cers  must  have  the  qualifications  of  citizenship  and  residence  mentioned  in 
this  section.  Thus  the  Attorney  General  has  held  that  notaries  public,  and 
overseers  of  the  poor  must  have  these  qualifications.^'^ 


Section  7.     The  General  Assembly  shall  pass  laws  excluding 
from  the  right  of  suffrage  persons  convicted  of  infamous  crimes. 


This  section  is  a  limitation  upon  the  power  of  the  General  Assembly  and 
that  body  has  no  power  to  exclude  any  qualified  elector  from  the  right  of 
suffrage  except  for  the  cause  mentioned  in  this  section, — conviction  for  an 
infamous  crime.^" 

In  pursuance  of  this  provision  of  the  constitution,  the  General  Assembly 
has  passed  laws  excluding  from  the  right  of  suffrage  persons  convicted  of 
infamous  crimes.  (Kurd's  Revised  Statutes  1917,  chap.  38,  sec.  279;  chap. 
46,  sec.  70)='' 


33  261    111.    413    (1914). 

2»  Report  Attorney  General  1900.  p.  233;  but  see  Report  Attorney  General 
1916.    p.    762. 

3*  People   v    McCormick,    261    111.    413    (1914). 

35  Report  Attorney  General  1900,  p.  237:  Report  Attorney  General  1915,  p. 
593;  Report  Attorney  General  1918,  p.  109;  but  see  State  Public  Utilities  Com- 
mission   v    Early.    285    111.    469    (1919). 

3«Sanner  v  Patton,  155  111.  553    (1895);  Christie  v  People,  208  111.  337    (1907). 

87  See  Report  Attorney  General  1916,  p.  831;  Report  Attorney  General  1914, 
p.   721;   Report  Attorney   General   1912.  p.   1266. 


ARTICLE  VIII— EDUCATION 


Section  1.  The  General  Assembly  shall  provide  a  thorough 
and  efficient  system  of  free  schools,  whereby  all  children  of  this 
State  may  receive  a  good  common  school  education. 


In  general.  A  common  school  education  may  include  a  high  school 
course^  and  the  fact  that  foreign  languages,  the  higher  mathematics,  and  the 
sciences  are  taught  in  the  high  school  does  not  change  its  character  from 
that  of  a  common  school.-  But  a  school  "devoted  exclusively  to  teaching  ad- 
vanced pupils  in  the  classics,  and  in  all  the  higher  branches  of  study  usually 
included  in  the  curriculum  of  the  colleges"  is  not  a  common  school.^ 


Power  and  duties  of  the  General  Assembly.  The  provision  of  this 
section  that  the  General  Assembly  shall  provide  a  thorough  and  efficient  sys- 
tem of  free  schools  gives  the  General  Assembly  a  broad  discretion  as  to  the 
manner  in  which  it  will  carry  out  the  duty  thus  enjoined.  In  the  case  of 
Plummer  v  Yost*  the  court  said:  "The  mode  in  which  the  system  of  free 
schools,  prescribed  by  the  constitution  is  to  be  organized  is  left  entirely  to 
the  discretion  of  the  legislature." 

Section  22  of  article  4,  provides  that  the  General  Assembly  shall  not  pass 
special  laws  relating  to  the  management  of  the  common  schools,  but  it  has 
been  held  that  the  broad  grant  of  power  given  to  the  General  Assembly  by 
the  section  now  under  discussion  limits  the  effect  of  section  22  of  article  4 
strictly  to  a  denial  of  the  power  to  pass  special  laws  relating  to  the  manage- 
ment of  the  common  schools.  This  is  illustrated  by  the  case  of  Land  Com- 
missioners V  Kaskaskia  Commons.^  In  that  case  it  was  urged  that  an  act 
authorizing  the  sale  of  the  Kaskaskia  commons  and  the  use  of  the  proceeds 
for  school  purposes  on  the  island  of  Kaskaskia  was  a  special  law  in  violation 
of  section  22  of  article  4.  But  the  court  held  that  the  more  comprehensive 
language  of  section  1  of  article  8  limited  the  scope  of  section  22  of  article  4 
to  laws  relating  strictly  to  the  management  of  the  common  schools  and  that 
this  act  in  no  sense  related  to  the  management  of  the  schools. 

The  power  given  the  General  Assembly  to  create  a  system  of  free  schools 
is  qualified,  however,  by  the  provision  that  the  system  created  must  be  a 
system  "whereby  all  children  of  this  state  may  receive  a  good  common 
school  education".  This  qualification  requires  that  the  legislative  plan  for 
the  creation  of  the  school  system  must  be  uniform  in  its  operation.  "The 
same  privileges  of  attendance  upon  the  schools  must  in  all  cases  be  extended 


iCook  V  Board  of  Directors.  266  111.  164  (1914):  Richards  v  Raymond.  92 
111.  612  (1879):  'Russell  v  High  School  Board,  212  111.  327  (1904);  People  v  C 
&   N.   W.    Ry.    Co..    286    111.    384    (1919). 

2  People    V    Moore.    240    111.    408    (1909). 

3  Powell  V  Board  of  Education,  97  111.  375  (1881);  but  see  Boehm  v  Hertz. 
182   111.    154    (1899). 

i  144   111.   68    (1893). 

5  249  111.  578  (1911);  Fuller  v  Heath.  89  111.  296  (1878);  Speight  v  People. 
87  111.   595    (1877);   Boehm   v  Hertz,    182    111.   154    (1899). 

191 


193  Article  8,  Section  2 

equally  to  all  children  similarly  situated.""  Thus  in  the  case  of  People  v 
Weis,'  a  township  high  school  act  which  allowed  certain  townships  to  or- 
ganize township  high  schools  was  held  invalid,  both  as  a  special  law  in  con- 
travention of  section  22  of  article  4  and  because  such  an  act  violated  the 
requirements  of  uniformity  contained  in  section  1  of  article  8,  since  by  virtue 
of  this  act  "some  may  be  denied  the  privilege  of  organizing  the  territory  in 
which  they  reside  into  a  township  high  school  district,  and  thus  be  denied 
the  opportunity  to  receive  a  free  education  at  such  an  institution."  (See 
discussion  article  4,  section  22,  subheading,  "Management  of  the  common 
schools"). 

This  requirement  of  uniformity  has  also  been  applied  in  holding  that 
colored  children  cannot  be  segregated  in  the  schools.  It  is  held  that  colored 
children  can  not  be  excluded  from  the  schools  nearest  their  homes,  even 
though  equal  educational  facilities  are  given  in  more  distant  schools.^ 

It  has  been  held  that  this  section  of  the  constitution  prevents  the  exclu- 
sion of  children  from  the  public  schools  because  of  their  refusal  to  be  vac- 
cinated, but  in  a  case  of  existing  or  threatened  epidemic  children  who  have 
not  been  vaccinated  may  be  excluded  during  the  period  of  the  epidemic." 
The  Supreme  Court  has  several  times  declined  to  sanction  a  rule  making 
vaccination  a  prerequisite,  under  all  circumstances,  to  public  school  at- 
tendance.'* 


Section  2.  All  lands,  moneys,  or  other  property,  donated, 
granted  or  received  for  school,  college,  seminary  or  university  pur- 
poses, and  the  proceeds  thereof,  shall  be  faithfully  applied  to  the 
objects  for  which  such  gift  or  grants  were  made. 


The  primary  purpose  of  this  section  is  to  prevent  the  use.  for  purposes 
other  than  school  purposes,  of  school  lands,  granted  to  the  state  by  the  fed- 
eral government.  In  the  case  of  Grosse  v  People,"  the  court  said:  "From  an 
inspection  of  this  pection  it  is  apparent  that  it  applies  only  to  gifts  or  grants 
made  prior  to  the  adoption  of  the  constitution  of  1870.  Its  language  plainly 
indicates  that  lands,  money  and  other  property  had  been  theretofore  donated, 
granted  and  received  for  schools,  colleges,  seminary  and  university  purposes, 
and  directs  that  such  gifts  or  grants  shall  be  faithfully  applied  to  the  objects 
for  which  they  were  made;  and  when  it  is  considered  that  the  federal  gov- 
ernment had,  prior  to  the  adoption  of  the  constitution  1870,  granted  sec- 
tion 16  in  each  township,  or  lands  equivalent  thereto,  to  the  state  for  the  use 
of  the  inhabitants  of  such  township  for  the  use  of  schools,  and  had  also 
granted  lands  and  donated  funds  to  the  State  for  the  establishment  and 
maintenance  of  a  state  college  or  university  and  for  the  founding  and  sup- 
port of  a  state  seminary,  it  becomes  apparent  that  the  section  of  the  consti- 
tution had  reference  primarily  to  these  gifts  and  grants  from  the  federal 
government,  it  manifestly  does  not  extend  to  gifts  or  grants  made  subse- 
quent to  the  adoption  of  the  constitution." 

This  section  finds  its  principal  application  in  the  rule  that  certain  school 
property  is  exempt  from  taxation,  since  to  tax  such  property  would  divert  it 
to  purposes  other  than  school  purposes.    While  school  property  in  general  is 


"People  v  C.  &  N.  W.   Ry.   Co..    286   111.   384    (1019). 
^275   111.   581    (1916). 

8  People  V  Mayor  of  Alton,  193  111.  309  (1901);  People  v  Board  of  Educa- 
tion. 101  111.  308  (1882):  Thase  v  Stephenson.  71  111.  383  (1874);  People  v  Board 
of    Education,    127.    111.    613     (1889). 

"Potts  v  Breen.   167   Til.   67    (1897):  Haerler  v   Larner.    284   111.    547    (1918). 
i»  People    V    Board    of    Education.    234    111.    422     (1908):    Lawbauerh    v    Board 
of  Education.   177  111.   572    (1899);  Hauler  v  Larner.   284  111.   547    (1918). 
^1218   111.    342    (1905). 


Article  8,  Section  3  193 

not  exempt  from  taxation  under  this  section  of  the  constitution,^-  the  Su- 
preme Court  has  held  that  school  lands  which  are  part  of  the  original  federal 
grants  for  school  purposes,  or  which  were  purchased  with  the  proceeds  of 
such  grants,  are  exempt,  under  the  provisions  of  this  section,  from  both  gen- 
eral taxation  and  special  assessment."  It  has  also  been  held  that  a  tax  can 
not  be  assessed  upon  the  rents  received  from  these  lands  since  such  rents  are 
"proceeds"  of  the  grants  within  the  language  of  this  section.^*  However,  this 
section  was  intended  to  secure  only  gifts  made  for  public  school  purposes 
and  has  no  reference  to  private  donations  to  educational  institutions,  which 
are  not  a  part  of  the  public  school  system.  Thus,  land  granted  by  individuals 
to  the  University  of  Chicago  is  subject  to  special  assessments,  since  the  Un- 
versity  of  Chicago  is  not  a  part  of  the  public  school  system  of  the  state."  In 
this  connection  it  may  be  noted  that  section  3  of  article  9  authorizes  the 
General  Assembly  to  exempt  from  taxation  property  used  exclusively  for 
school  purposes.  (See  discussion  article  9,  section  3,  subheading,  "Power  of 
General  Assembly.") 

In  the  case  of  Cravener  v  Board  of  Education^"  it  was  contended  that  this 
section  of  the  constitution  would  prevent  the  board  of  education  of  the  city 
of  Chicago  from  assuming  control  of  valuable  school  lands  in  the  town  of 
Lake  upon  the  annexation  of  that  town  to  the  city  of  Chicago.  But  the  court 
held  that  this  section  did  not  prevent  the  General  Assembly  from  vesting 
legal  title  in  a  different  agency,  provided  that  the  lands  were  to  be  devoted 
to  school  purposes. 

The  Attorney  General  has  held  that  an  act  permitting  the  use  of  the 
proceeds  or  rents  of  school  lands,  (part  of  the  original  federal  grants  for 
school  purposes),  to  pay  for  draining  such  lands,  is  in  violation  of  this  sec- 
tion of  the  constitution." 


Section  3.  Neither  the  General  Assembly  nor  any  county,  city, 
town,  township,  school  district  or  other  public  corporation,  shall 
ever  make  any  appropriation  or  pay  from  any  public  fund  whatever, 
anything  in  aid  of  any  church  or  sectarian  purpose,  or  to  help  sup- 
port or  sustain  any  school,  academy,  seminary,  college,  university, 
or  other  literary  or  scientific  institution,  controlled  by  any  church 
or  sectarian  denomination  whatever;  nor  shall  any  grant  or  dona- 
tion of  land,  money,  or  other  personal  property  ever  be  made  by  the 
State,  or  any  such  public  corporation,  to  any  church,  or  for  any 
sectarian  purpose. 


In  the  case  of  County  of  Cook  v  Industrial  School,"  decided  in  1888,  it 
was  held  that  this  section  prohibited  the  payment  of  money  to  sectarian  in- 
stitutions for  the  care  of  delinquent  children  committed  to  such  schools  by 
the  courts  of  this  state.  However,  in  Dunn  v  Chicago  Industrial  School,^*  de- 
cided in  1917,  the  court  held  that  such  payments  might  be  made  to  sectarian 
schools  where  it  appeared  that  the  amount  paid  was  less  than  the  cost  of  the 
actual  care  of  the  children.    The  court  took  the  view  that  where  the  amount 


12  Grosse  People,  218  111.  342  (1905);  City  of  Chicago,  v  City  of  Chicago, 
207    111.    37    (1904). 

"City  of  Chicago  v  People.  80  111.  384  (1875);  People  v  Trustees,  118  111. 
52    (1886). 

"People   v    Citv   of    Chicago.    216    111.    537    (1905). 

"University   of    Chicago    v    People.    118    111.    565    (1886). 

i«133    111.    145    (1890). 

1^  Report    Attorney    General    1908,    p.    61. 

i**  125  111.  540  (1888);  see  County  of  McLean  v  Humphreys,  104  111.  378  (1882). 

«280  111.  613   (1917). 


194:  Article  8,  Sections  4,  5 

paid  was  less  than  the  amount  required  to  maintain  the  children  in  a  state 
institution,  it  could  not  be  said  that  a  donation  had  been  made  for  a  sec- 
tarian purpose.     The  decision  has  been  followed  in  later  cases.^" 

It  has  been  held  that  this  section  does  not  prohibit  a  church  from  erect- 
ing a  church  building  on  a  poor  farm,  since  such  an  arrangement  results  in 
a  gift  of  the  building,  by  the  church,  to  the  county,  rather  than  any  gift  by 
the  county  to  the  church.-^ 

It  has  also  been  held  that  this  section  does  not  prevent  the  use  of  a 
public  school  house  for  religious  meetings,  since  this  use  in  no  way  inter- 
feres with  the  use  of  the  building  for  school  purposes  and  is  consistent  with 
the  faithful  application  of  the  prope^-ty  to  school  purposes.-^ 

This  section  is  frequently  construed  in  connection  with  section  8  of 
article  2,  which  provides  that  no  preference  shall  be  given  by  law  to  any 
religious  denomination  or  mode  of  worship.  (See  discussion  article  2,  sec- 
tion 3.) 


Section  4.  No  teacher,  State,  county,  township,  or  district 
school  officer  shall  be  interested  in  the  sale,  proceeds  or  profits  of 
any  book,  apparatus  or  furniture,  used  or  to  be  used,  in  any  school 
in  this  State,  with  which  such  officer  or  teacher  may  be  connected, 
under  such  penalties  as  may  be  provided  by  the  General  Assembly. 

(See  article  4,  sections  15,  25.) 


Section  5.  There  may  be  a  County  Superintendent  of  Schools 
in  each  county  whose  qualifications,  powers,  duties,  compensation, 
and  time  and  manner  of  election,  and  term  of  office,  shall  be  pre- 
scribed by  law. 


It  has  been  held  that  the  provision  of  this  section  that  the  "time  and 
manner  of  election"  of  the  county  superintendent  of  schools  "shall  be  pre- 
scribed by  law"  does  not  give  the  General  Assembly  the  power  to  fix  the 
qualifications  of  electors  so  as  to  permit  women  to  vote  for  that  officer." 
(See  discussion  article  7,  section  1,  subheading,  "Woman  suffrage.") 

Since  1870,  the  county  superintendent  of  schools  has  been  elected  by 
popular  vote.  It  has  been  suggested,  however,  that  this  section  does  not 
necessarily  require  a  popular  election.  Some  have  thought  that  an  election 
of  the  county  superintendent  of  schools  by  the  county  board  would  suflfice  to 
satisfy  this  section  of  the  constitution.  There  is,  however,  no  authoritative 
construction  as  to  this. 

The  Attorney  General  has  said  that  women  might  be  permitted,  by 
statute,  to  hold  the  oflftce  of  county  superintendent  of  schools,  since  the  Gen- 
eral Assembly  has  the  power  to  fix  the  qualifications  of  that  oflacer." 


=»Dunn  V  Addison  School,  281  111.  352  (1917):  Trost  v  Ketteler  Manual 
Training  School,  282  111.  504  (1918);  St.  Hedwig's  School  v  Cook  County,  289  111. 
432    (1919). 

siReichwald   v    Catholic   Bishop.    258    111.    44    (1913). 

^Nichols  V  School  Directors,   93   111.   61    (1879). 

=»  People  V  English,  139  111.  622  (1892);  but  see  Scown  v  Czarnecki.  264  111. 
305    (1914). 

2^  Report   Attorney   General    1914,    p.    1162. 


ARTICLE  IX— REVENUE 


Section  1.  The  General  Assembly  shall  provide  such  revenue 
as  may  be  needful,  by  levying  a  tax,  by  valuation,  so  that  every  per- 
son and  corporation  shall  pay  a  tax  in  proportion  to  the  value  of  his, 
her,  or  its  property — such  value  to  be  ascertained  by  some  person  or 
persons,  to  be  elected  or  appointed  in  such  manner  as  the  General 
Assembly  shall  direct,  and  not  otherwise;  but  the  General  Assem- 
bly shall  have  power  to  tax  peddlers,  auctioneers,  brokers,  hawkers, 
merchants,  commission  merchants,  showmen,  jugglers,  inn- 
keepers, grocery-keepers,  liquor-dealers,  toll  bridges,  ferries,  in- 
surance, telegraph  and  express  interests  or  business,  venders  of  pat- 
ents, and  persons  or  corporations  owning  or  using  franchises  and 
privileges,  in  such  manner  as  it  shall,  from  time  to  time,  direct  by 
general  law,  uniform  as  to  the  class  upon  which  it  operates. 

The  general  property  tax.  The  first  clause  of  this  section  and  sections 
9  and  10  of  article  9  establish  the  general  property  tax  in  this  state.  This 
section  relates  to  state  taxes  and  sections  9  and  10  refer  to  municipal  taxes. 

In    General. 

The  basic  principle  of  the  general  property  tax  is  that  all  property,  ir- 
respective of  its  character,  whether  real  or  personal,  tangible  or  intangible, 
shall  be  taxed  at  the  same  rate  and  in  proportion  to  its  value.  The  general 
property  tax  was  established  in  this  state  by  the  constitution  of  1818^  (art- 
icle 8,  section  20),  and  the  principle  was  carried  forward  into  the  constitu- 
tion of  1848  (article  9,  section  2)  and  the  present  constitution.  In  construing 
the  section  of  the  constitution  of  1870  now  under  consideration  the  Supreme 
Court  has  said:  "Under  section  1  of  article  9  of  the  constitution  we  think  it 
is  plain  that  the  burdens  of  taxation  were  intended  to  be  cast  equally  upon 
all  the  property  of  the  state,  of  every  description.  Where  revenue  was  needed 
a  tax  is  required  to  be  levied,  on  a  valuation,  so  that  every  person  a^d  cor- 
poration shall  be  required  to  pay  a  tax  in  proportion  to  the  value  of  his,  her 
or  its  property.  Uniformity  of  taxation  on  all  property  was  the  cardinal 
principle  of  that  section  of  the  constitution     .      .      .."^ 

Under  the  last  clause  of  this  section  of  the  constitution  the  General 
Assembly  is  given  the  power  to  tax  occupations  and  persons  or  corporations 
owning  or  using  franchises  and  privileges  "in  such  manner  as  it  shall  from 
time  to  time  direct  by  general  law  uniform  as  to  the  class  upon  which  it 
operates".  The  constitution  of  1848  contained  a  similar  provision  but  the 
constitution  of  1818  did  not  confer  any  such  power  upon  the  General  As- 

1  Sawyer  v  City  of  Alton,  4  111.  127  (1841).  Although  the  framers  of  the 
first  constitution  contemplated  the  establishment  of  the  general  property  tax 
there  was  no  serious  attempt  to  apply  that  system  of  taxation  until  1839.  In 
that  year,  however,  the  General  Assembly  passed  a  law  which  fully  established 
the  general  property  tax  in  this  state.  See  Rhinehart  v  Schuyler.  7  111.  473 
(1843). 

2  Loan   and    Homestead   Association    v    Keith,    153    111.    609    (1894). 

195 


196  Article  9,  Section  1 

sembly.  Since  1848  the  General  Assembly,  with  respect  to  occupations,  fran- 
chises and  privileges  has  been  empowered  to  impose  taxes  otherwise  than  in 
proportion  to  the  value  of  property,  although  the  principle  of  uniformity  as 
to  class  is  expressly  enjoined  upon  the  taxing  authorities.  This  clause  has 
given  rise  to  much  litigation  and  it  is  not  an  easy  matter  to  reconcile  all  of 
the  judicial  decisions  on  this  subject.  (See  discussion  subsequent  subhead- 
ing, "Taxation  of  occupations,  franchises  and  privileges.") 

In  recent  years  there  has  been  much  criticism  of  the  general  property 
tax  in  this  and  in  other  states.  Many  states  have  already  abandoned  the 
principle  of  the  general  property  tax.  The  proposed  tax  amendment  of  1916, 
would  have  permitted  the  General  Assembly  of  this  state  to  classify  property 
for  the  purposes  of  taxation — that  is,  would  have  authorized  the  General  As- 
sembly to  provide  for  the  taxation  of  personal  property  otherwise  than  in 
proportion  to  value,  or,  at  least,  on  a  different  basis  than  real  estate. 

(For  a  discussion  concerning  the  history  and  criticisms  of  the  general 
property  tax,  see  Constitutional  Conventions  in  Illinois,  Second  Edition,  pp. 
76-89;  Constitutional  Convention  Bulletin  No.  4,  pp.  220-244). 


Property   subject  to  taxation. 

Obviously  real  estate  and  tangible  personal  property,  such  as  furniture 
and  farm  implements,  are  property  within  the  meaning  of  the  constitutional 
provisions  relating  to  taxation.  And  while  it  has  been  contended  that  in- 
tangible personal  property,  such  as  notes,  mortgages  and  bonds,  is  not  subject 
to  taxation,  the  courts  have  declined  to  adopt  that  view.  "The  word  prop- 
erty is  not  alone  used  in  our  language  to  denote  tangible  things,  but  is  prop- 
erly applied  to  denote  intangible  rights  of  value.  One  may  have  a  property 
in  a  patent  right  or  a  copy  right,  which  is  as  much  ideal  as  is  a  right  of 
action.  We  may  safely  assume  that  it  was  the  policy  of  the  convention 
which  framed  this  clause  of  the  constitution,  that  each  person  pay  a  direct 
tax  in  proportion  to  the  pecuniary  interests  which  he  has  in  the  state,  and 
to  be  protected  and  defended  by  the  laws."^ 

A  person  who  loans  money  to  another  must  pay  taxes  on  the  money 
loaned  by  him.^  If  a  note  and  mortgage  are  taken  to  secure  the  purchase 
price  of  a  tract  of  land  both  the  note  and  the  land  are  subject  to  taxation."* 
Leasehold  estates  in  state  lands,  city  warrants  and  certificates  of  purchase  at 
mortgage  foreclosure  sales  are  taxable."  The  capital  stock  and  franchise  of  a 
corporation  are  property  within  the  meaning  of  the  constitution  and,  as  such, 
are  subject  to  taxation.^  The  General  Assembly  also  has  the  power  to  pro- 
vide for  the  taxation  of  shares  of  stock  in  the  hands  of  the  stockholder.^  And, 
in  Huck  v  Chicago  and  Alton  Railroad  Company"  it  was  held  that,  under  the 
peculiar  facts  in  that  case,  railroad  lines  leased  by  a  railroad  company  were 
taxable  in  the  hands  of  the  lessee. 

Coal  rights  are  taxable  either  as  a  part  of  the  land  or  separately.  If 
the  same  person  owns  both  the  land  and  the  coal  rights  it  is  proper,  in 
assessing  the  land,  to  add  thereto  the  value  of  the  coal  rights.  But  if  the 
land  and  the  coal  rights  are  owned  by  different  persons  then  each  should  be 
assessed  and  taxed  separately." 


3  People    V    WorthinRton,    21    111.    171    (1859). 

*  People  V  McConnell,    12   III.   138    (1850). 

5  People  V  Worthington,  21  111.  171  (1859);  see,  also,  People  v  "Rhodes,  15 
111.    305    (1853). 

«  Carring-ton  v  People,  195  111.  484  (1902);  Easton  v  Board  of  Review.  183 
111.    255    (1899);    Wedgbury    v    Cassell.    164    111.    622    (1897). 

VPort.er  v  R.  R.  I.  &  St.  L.  R.  R.  Co.,  76  111.  561  (1875);  Ottawa  Glass 
Co.   V  McCaleb,   81   111.   556    (1876). 

s  Ottawa  Glass  Co.  v  McCaleb.  81  111.  556  (1876);  Danville  Banking  and 
Trust  Co.  V  Parks.  88  111.  170  (1878);  In  re  St.  Louis  L.  &  I.  Co.  194  111.  609 
(1902);  Illinois  National  Bank  v  Kinsella  201  111.  31,  (1903);  First  National  Bank 
of   Urbana   v   Holmes.    246    111.    362    (1910). 

»86    111.    352    (1877). 
i«  Consolidated   Coal    Co.    v   Baker.    135    111.    545    (1895). 


Article  9,  Section  1  197 

Property  in  the  course  of  transportation  from  one  state  to  another  is 
not  subject  to  taxation  in  this  state." 


Uniformity. 

It  has  been  emphasized  by  the  courts  tliat  the  principles  sought  to  be 
established  by  the  framers  of  the  present  constitution,  in  providing  for  the 
taxation  of  property  in  proportion  to  value,  were  those  of  equality  and  uni- 
formity. "The  great  central  idea  of  the  constitution  and  of  its  framers,  was 
not  a  system  of  revenue  based  on  the  valuation  of  property,  but  uniformity 
and  equality  in  the  assessment  of  the  tax  upon  it  when  valued,  so  that  every 
person  should  pay  a  tax  in  proportion  to  it.  That  is  the  leading  idea."^-  The 
requirement  that  all  property  shall  be  taxed  in  proportion  to  value  is,  there- 
fore, but  a  means  of  attaining  uniformity  and  equality  of  taxation,  and  that 
this  was  the  intention  of  the  framers  of  the  constitution  cannot  be  doubted. 
It  is  probably  true  that  in  1870  a  system  of  taxation  in  proportion  to  value 
established  a  standard  by  which  substantial  equality  and  uniformity  of  taxa- 
tion was  attained.  Regardless  of  that  question,  however,  there  can  be  but 
little  doubt  that  the  means,  prescribed  by  the  convention  of  1869-70,  of  ob- 
taining equality  and  uniformity — that  is,  taxation  in  proportion  to  value — • 
does  not  today  have  the  effect  of  securing  equality  and  uniformity  of  taxa- 
tion.     (See  Constitutional  Convention  Bulletin  No.  4,  pp.  232-244.) 

It  can  probably  be  safely  said  that  under  the  earlier  constitutions  the 
courts  were  inclined  to  take  a  more  liberal  view  as  to  what  was  a  sufficient 
compliance  with  the  rule  of  uniformity.  Thus,  in  Rhinehart  v  Schuyler"  it 
was  held  that  a  statute  which  classified  all  lands  of  the  state  into  three 
classes,  and  fixed  the  value  of  each  class,  was  not  in  violation  of  the  prin- 
ciple of  uniformity.  This  case  involved  primarily  the  revenue  law  of  1827, 
and  it  must  be  admitted  that  the  decision  turned  largely  on  the  point 
of  practical  necessity.  In  the  early  years  of  the  history  of  the  state  it  would 
have  been  a  difficult  matter  to  have  provided  for  the  assessment  or  fixing  of 
the  value  of  each  tract  of  land  separately.  In  another  early  case  it  was  held 
that  an  act  which  provided  for  the  assessment  of  bank  shares  on  a  later  date 
than  that  for  the  assessment  of  other  property  was  not  in  violation  of  the 
constitutional  requirement  with  respect  to  uniformity."  However,  it  was 
held  that  under  the  constitution  of  1848  the  General  Assembly  could  not 
direct  the  imposition  of  a  five  per  cent  penalty  for  failure  to  pay  taxes  on  or 
before  a  specified  date  because  that  would  have  resulted  in  lack  of  uni- 
formity.^' 

With  reference  to  the  rule  of  uniformity  prescribed  by  the  present  consti- 
tution it  has  been  said:  "To  secure  that  uniformity,  two  things  are  es- 
sential: First,  the  assessments  shall  be  just  and  equal,  in  proportion  to  the 
value  of  the  property  liable  to  assessment;  and,  secondly,  when  thus 
assessed,  the  rate  shall  be  uniform  as  to  every  person,  and  on  every  species 
of  property  returned  by  the  assessor  for  taxation. "^^  This  does  not  mean, 
hov/ever,  that  assessments  must  always  be  made  by  the  same  officer  or  class 
of  officers  or  that  the  same  methods  of  ascertaining  values  must  be  followed 
for  all  classes  of  property.  Thus,  the  General  Assembly  may  provide  for  the 
assessment  of  the  capital  stock  of  some  corporations  by  the  State  Board  of 
Equalization  and  the  capital  stock  of  other  corporations  by  the  local  asses- 


^1  Burling:ton  Lumber  Co.  v  Willetts.   118  111.   559    (1886), 

"People  V   Salomon,   46   111.   333    (1868). 

"7  111.  473  (1845);  see,  also.  Sawyer  v  City  of  Alton,  4  111.  127  (1841); 
Town   of   Pleasant   v   Kost,    29    111.    490    (1863). 

I'McVeash    v   City   of   Chicago.    49    111.    318    (1868). 

i*Scammon  v  City  of  Chicagro.  44  111.  269  (1867):  but  see  Chambers  v  Peo- 
ple, 113  111.  509  (1885);  For  other  early  cases  with  reference  to  uniformity  see 
O'Kane  v  Treat.  25  111.  557  (1861):  Darling  v  Dunn.  50  111.  424  (1869):  Living-- 
ston  County  v  Weider,  64  111.  427  (1872);  Burr  v  City  of  Carbondiale,,  76  111.  455 
(1875). 

i«  Sherlock   v   Village   of   Winnetka,    68    111.    530    (1873), 


198  Article  9,  Section  1 

tsors."  And  the  constitution  does  not  prevent  the  State  Board  of  Equaliza- 
tion from  ascertaining  the  value  of  the  capital  stock  of  corporations  by  a 
method  which  requires  the  adding  together  the  market  value  of  the  stock 
and  the  amount  of  the  corporate  indebtedness  (exclusive  of  current  obliga- 
tions) and  deducting  from  that  total  the  value  of  the  corporate  tangible 
property.'**  The  General  Assembly  may  also  classify  counties  and  provide 
for  different  assessing  officers  in  one  class  of  counties  than  in  other  classes.'^ 
But  it  is  improper  to  tax  property  assessed  by  the  State  Board  of  Equaliza- 
tion at  a  different  rate  than  the  property  assessed  by  other  assessment 
officers.-^ 

"The  fact  that  certain  credits  and  deductions  may  be  allowed  in  the 
assessment  of  personal  property  does  not  establish  want  of  uniformity."-' 
Nor  is  the  principle  of  uniformity  violated  when  two  overlapping  taxing  dis- 
tricts are  authorized  to  levy  taxes  for  the  same  purpose.  Thus,  the  town  of 
Bloomington  and  the  city  of  Bloomington  may  both  levy  taxes  for  road  and 
bridge  purposes,  even  though  the  two  municipalities  overlap.--  But  a  statute 
which  creates  the  office  of  commissioner  of  Canada  thistles  and  provides  for 
his  compensation  by  the  imposition  of  a  tax  on  the  lands  from  which  the 
commissioner  removes  thistles  is  void  because  it  is  in  violation  of  that  pro- 
vision of  the  constitution  which  requires  that  taxes  on  property  shall  be 
levied  in  proportion  to  value,  and  thus  contravenes  the  principle  of  uniform- 
ity secured  by  that  instrument."^ 

While  the  general  rule  is  that  all  taxes  on  property  must  be  levied  in 
proportion  to  the  value  of  the  property  taxed,  the  opinion  of  the  court  in 
Raymond  v  Hartford  Fire  Insurance  Company-*  implies  that  this  rule  is  not 
without  exception.  In  that  case  the  court  said  that  the  second  clause  of 
section  1  of  article  9  is  not  limited  to  taxes  on  occupations  or  franchises  and 
privileges  as  distinguished  from  taxes  on  property.  "The  contention  that 
the  statute  violates  the  first  section  above  set  out  is,  that  the  second  clause 
of  that  section  does  not  relate  to  property  taxes  strictly  so  called,  but  to 
taxes  which  the  legislature  may  authorize  to  be  levied  on  different  kinds  of 
business  or  occupations,  and  that  such  taxes  were  intended  by  the  framers 
of  the  constitution  to  be  in  addition  to,  and  not  in  lieu  of,  the  tax  on  prop- 
erty by  valuation  provided  for  in  the  first  clau?e,  and  that  although  the 
legislature  has  the  power  to  impose  the  tax  authorized  by  the  act  of  1899 
on  foreign  insurance  corporations  as  a  class,  for  the  privilege  of  doing 
business  in  this  State,  it  has  no  power  to  relieve  them  of  their  personal 
property  tax  imposed  by  the  general  revenue  law,  enacted  under  the  first 
clause.  There  is  no  substantial  difference  between  this  section  of  the 
present  constitution  and  section  2  of  article  9  of  the  constitution  of  1848, 
and  this  court  has  held  that  said  second  clause  is  not  confined  to  occupa- 
tions, but  applies  also  to  property  interests,  which  may  be  included  in  the 
method  of  taxation  adopted  by  the  legislature,  and  which  method  may  be 
different  from  that  prescribed  by  the  first  clause  of  said  section  1." 

This  opinion  clearly  implies  that,  with  respect  to  the  objects 
and  subjects  enumerated  in  the  last  clause  of  section  1  of 
article  9,  the  General  Assembly  may  provide  for  the  taxation  of  property 
otherwise  than  in  proportion  to  value.  However,  it  must  be  remembered 
that  the  statements  of  the  court  on  this  point  were  not  necessary  to  the 
decision.     The  court  said  that  the  act  of  the  General  Assembly  then  under 


I'Coal  Run  Coal  Co.  v  Finlen.  124  111.  666  (1888);  Sterling:  Gas  Co.  v  Higby. 
134  111.  557  (1890);  Hub  v  Hanberg,  211  111.  43  (1904);  see,  also,  People  v 
Salomon.    46    111.    ^.?3    (1868). 

Importer  v  R.  'R.  I.  &  St.  U  R.  R.  Co..  76  111.  561  (1875);  see.  also.  C.  &  A. 
R.  R.  Co.,  V  People,  98  111.  350  (1881).  The  case  of  In  re  St.  I.ouis  L.  &  I.  Co. 
194    111.    609    (1902)    involves   the   same   principle. 

"People    V    Commissioners    of    Cook    County.    ITG    Til.    576     (1898). 

2«C.    C.    C.    &    St.    L.    Ry.    Co.    V    People.    223    111.    17    (1906). 

21  Edwards    v    People.    88    111.    340     (1878). 

23  Highway    Commissioners   v    City   of   Bloomington.    253    111.    164    (1912). 

"■'People  V  Board  of  Commissioners.  221  111.  493  (1906);  see.  also.  Cook 
County    V    Fairbank.    222    111.    576     (1906). 

2"  196   111.   329    (1902);   see,   also,   Hub  v   Hanberg.    211   111.    43    (1904). 


Article  9,  Section  1  19^ 

consideration,  which  provided  that  all  foreign  fire  insurance  companies 
should  pay  into  the  state  treasury  two  per  cent  of  the  gross  amount  of 
premiums  received  for  business  done  in  this  state  in  lieu  of  all  other 
personal  property  taxes,  was  not  in  conflict  with  section  1  of  article  9,  but 
held  that  it  was  in  conflict  with  sections  9  and  10  of  the  same  article. 
(See  discussion  article  9,  section  9,  subheading,  "Commutation  of  municipal 
taxes").  The  main  purpose  of  the  second  clause  of  the  section  of  the  con- 
stitution under  consideration  was  to  permit  the  imposition  of  occupation 
and  franchise  taxes  in  addition  to  the  general  property  tax  and  not  in  lieu 
thereof.  If  the  issue  is  ever  squarely  presented  it  may  well  be  doubted  that 
the  Supreme  Court  will  hold  that  under  this  clause  the  General  Assembly- 
may  provide  for  the  taxation  of  any  property  otherwise  than  in  proportion 
to  value.  (For  a  further  consideration  of  this  case  see  discussion  article 
9,  section  3,  subheading,  "Commutations — Illinois  Central  Railroad  Com- 
pany" and  article  9,  section  6,  sub-heading  "Commutation  of  state  taxes"). 

In  1915  the  General  Assembly  passed  a  law  providing  for  the  payment 
of  the  tuition  of  high  school  pupils  residing  in  districts  having  no  high 
schools.  The  general  school  law  provides  for  the  distribution  of  the  state 
school  fund  to  each  county  on  the  basis  of  the  number  of  persons  under  the 
age  of  21,  and  for  the  distribution  of  the  share  of  each  county  to  the 
several  townships  in  that  county  on  the  same  basis.  The  act  of  1915 
directed  the  county  superintendent  of  schools  of  each  county,  before  dis- 
tributing that  county's  share  of  the  state  school  fund  among  the  townships 
therein,  to  deduct  from  the  total  amount  received  from  the  state  school 
fund,  an  amount  sufficient  to  pay  the  cost  of  the  tuition  of  all  pupils  of  that 
county  residing  in  school  districts  having  no  high  school'  but  attending  a 
high  school  in  some  other  school  district.  In  Board  of  Education  v 
Haworth-'  this  act  was  held  void  on  the  ground  that  its  effect  was  to 
compel  tax  payers  in  school  districts  maintaining  a  high  school  to  con- 
tribute indirectly  to  the  cost  of  giving  a  high  school  education  to  pupils 
residing  in  districts  not  maintaining  a  high  school,  thus  violating  the 
fundamental  principle  of  uniformity  of  taxation  secured  by  this  section 
of  the  constitution.  The  effect  of  this  decision  is  far  reaching.  The  act 
of  1915  did  not  relate  in  any  manner  to  the  levy  or  collection  of  taxes. 
Its  only  purpose  was  to  make  certain  provisions  concerning  the  distribution 
of  public  moneys.  It  seems  that  the  Haworth  case  must  be  accepted  as 
a  decision  to  the  effect  that  the  principle  of  uniformity  applies  not  only  to 
the  levy  and  collection  of  taxes  but  as  well  to  the  distribution  of  public 
moneys  raised  by  taxation. 

(For  a  further  consideration  of  the  question  of  uniformity  of  taxation 
see  discussion  under  the  four  following  center  subheadings). 


Assessment  of   property  for  the   purposes   of  taxation. 

One  of  the  most  difficult  questions  in  connection  with  the  whole  prob- 
lem of  uniformity  of  taxation  relates  to  the  assessment  of  property  for  the 
purpose  of  levying  taxes.  The  courts  realize,  of  course,  that  absolute  or 
perfect  uniformity  and  equality  in  assessing  property  for  taxation  is  im- 
possible. All  that  can  be  expected  is  a  reasonable  effort  to  carry  out  the 
principles  enjoined  by  the  constitution.  Individuals  will  necessarily  differ 
in  opinion  as  to  the  value  of  property.  Accordingly  it  has  been  held  that 
the  courts  will  not  interfere  with  the  assessment  of  property  for  the 
purposes  of  taxation  unless  it  appears  that  in  fixing  the  value  of  the  prop- 
erty the  assessing  authorities  acted  fraudulently.^"  If,  by  fraud,  property 
has  been  valued  excessively  the  courts  will  restrain  the  collection  of  taxes 


'^•274  111.  53S  (1916):  but  see  People  v  C.  &  N.  W.  Ry.  Co..  286  111.  384 
(1919).     See  Sangamon  County  v  City  of  Springfield,  63  111.  66   (1872). 

2"  Republic  Life  Insurance  Co.  v  PoUak.  75  111.  292  (1874):  Ottawa  Glass 
Co.  V  McCaleb,  81  111.  556  (1876);  Burton  Stock  Car  Co.  v  Traeger,  187  111.  9 
(1900). 


200  Article  9,  Section  1 

on  such  property  to  the  extent  that  the  assessment  is  excessive.^  Courts 
will,  of  course,  restrain  the  collection  of  taxes  if  the  taxes  are  not  author- 
ized by  law,  or  if  the  property  sought  to  be  taxed  is  not  subject  to  taxation, 
but  in  those  cases  the  principles  of  equality  and  uniformity  are  not  in- 
volved.-'* But,  if  the  tax  is  authorized  and  the  property  is  subject  to  taxa- 
tion, the  courts  will  interfere  only  in  the  event  that  there  has  been  fraud 
in  valuing  the  property. 

The  question  then  arises  as  to  what  is  fraud  in  the  assessment  of  prop- 
erty. Overvaluation,  while  it  may  be  evidence  of  fraud,  does  not  necessarily 
establish  fraud. -^  An  assessment  will,  not  be  interfered  with  by  the  judiciary 
merely  because  the  assessing  authorities  have  committed  an  error  of  judg- 
ment. If  the  tax  payer  has  received  the  honest  judgment  of  the  assessing 
officers  the  courts  have  no  power  to  intervene.^"  But  "where  .... 
the  valuation  is  so  grossly  out  of  the  way  as  to  show  that  the  assessor  could 
not  have  been  honest  in  his  valuation — must  reasonably  have  known  that 
it  was  excessive — it  is  accepted  as  evidence  of  a  fraud  upon  his  part 
against  the  taxpayer  and  the  court  will  interpose. "^^  And  the  objection 
of  fraudulent  over-valuation  may  be  raised  even  though  the  property  of 
the  objector  has  not  been  assessed  at  its  full  value;  if  it  is  fraudulently 
assessed  at  a  higher  rate  than  other  property  of  the  same  class  the  courts 
will  restrain  the  collection  of  taxes  on  that  part  of  the  assessment  which 
is  excessive  as  compared  with  the  assessment  of  other  property  in  the 
same  class. 

The  necessity  for  the  assessment  of  all  property  in  the  same  class  on 
a  similar  basis  was  first  pointed  out  by.  the  Supreme  Court  of  the  United 
States.  In  Raymond  v  Chicago  Union  Traction  Company^*-  that  court 
held  that,  unless  all  property  in  the  same  class  was  so  assessed,  the  four- 
teenth amendment  to  the  constitution  of  the  United  States  would  be 
violated.  The  courts  of  this  state  have  since  established  the  same  rule. 
Thus,  the  State  Board  of  Equalization  cannot  arbitrarily  assess  the  capital 
stock  of  one  corporation  at  a  higher  rate,  and  on  a  different  basis  of 
estimating  its  value,  than  the  capital  stock  of  other  corporations.^^  But 
it  seems  that  an  arbitrary  distinction  between  different  classes  of  property 
does  not  warrant  the  interposition  of  the  courts.  Thus,  in  a  case  where 
the  assessor  valued  personal  property  at  seventy-five  per  cent  of  its  true 
value  and  real  estate  at  forty-three  per  cent  of  its  true  value  the  court  held 
that  an  owner  of  a  particular  class  of  personal  property  was  not  entitled  to  a 
reduction  in  his  taxes.^^ 

Generally,  the  objection  that  the  assessing  authorities  have  acted  in  a 
fraudulent  manner  arises  in  connection  with  an  alleged  over-valuation.  But 
the  courts  have  power  to  interfere  in  the  case  of  fraudulent  undervalua- 
tion by  compelling  the  assessing  authorities  to  assess  in  the  manner  pre- 
scribed by  law  all  property  so  undervalued,  or  not  valued  at  all.^^ 

With  respect  to  the  whole  problem  of  judicial  revision  of  assessments 
it  may  be  stated  that  the  courts  will  not  interfere  with  the  action  of  the 
assessing  authorities  unless  the  proof  of  fraud  on  the  part  of  those  author- 
ities is  clear  and  convincing,^"  and  the  burden  of  showing  fraud  is  upon  the 
tax  payer."  As  has  been  suggested  this  rule  is  based  largely  on  the  ground 
that  perfect  uniformity  in  taxation,  because  of  the  difference  of  opinion  as  to 


2^  People's   Gas   Li^ht   Co.   v   Stuckhart.    286    111.    164    (1919). 

28Lowenthal    v    People,    192    111.    222    (1901). 

^People   V    Bourne.    242    HI.    61    (1907). 

*•  First   National   Bank  of   Urbana  v   Holmes.    246    111.    362    (1910). 

31  Pacific  Hotel  Co.  v  Lieb.  83  111.  602  (1876):  see.  also.  People's  Gas  Llgrht 
Co.  V  Stuckhart.  286  111.  164  (1919);  People  v  K.  and  H.  Bridge  Co..  287  111.  246 
(1919). 

»-207   U.    S.    20    (1907). 

33  People's  Gas  Light  Co.  v  Stuckhart.  286  111.  164  (1919);  see,  also,  Bureau 
County  V   C.   B.  &  Q.   'R.   R.   Co..   44   111,   229    (1867). 

«' First    National    Bank   of    Urbana    v    Holmes.    246    111.    362     (1910). 

s"' People  V   State  Board  of  Equalization,   191    111.    528    (1901). 

insanitary   District   of   Chicago    v    Gifford.    257    111.    424    (1913). 

37  Consolidated   Coal    Co.    v   Baker.    135    111.    545    (1891). 


Article  9,  Section  1  201 

the  value  of  property,  is  impossible.  But  it  has  also  been  based  on  the 
ground  that  the  judiciary  has  no  power  to  assess  property  for  the  purposes 
of  taxation.  This  section  of  the  constitution  provides  that  the  value  of 
property  for  the  purposes  of  taxation  shall  "be  ascertained  by  some  person 
or  persons  to  be  appointed  in  such  manner  as  the  General  Assembly  shall 
direct  and  not  otherwise,"  and  this  provision  denies  the  courts  the  power 
to  assess  property.  (See  discussion  subsequent  center  subheading,  "Assess- 
ment officers.'). 


Exemptions. 

The  rule  of  uniformity  with  respect  to  taxation  prescribed  by  the  con- 
stitution requires  that  all  property  shall  pay  taxes  in  proportion  to  value.. 
Except  as  permitted  by  the  constitution  itself  the  General  Assembly  has  no 
power  to  exempt  any  property  from  taxation.  (See  discussion  article  9„ 
section  3). 


Commutations. 
Under  the  earlier  constitutions  it  was  held  that  the  rule  of  uniformity 
did  not  prevent  the  commutation  of  taxes — that  is,  that  rule  did  not  operate 
to  deny  the  General  Assembly  the  power  to  authorize  the  acceptance  of  a 
specific  sum  of  money  or  something  else  of  value  in  lieu  of  taxes  in  pro- 
portion to  the  value  of  the  property  owned  by  the  person  or  corporation 
whose  taxes  were  commuted.  And  there  is  perhaps  a  possibility  that, 
even  under  the  present  constitution,  commutation  of  state  taxes  as  to  cer- 
tain persons  or  corporations  is  not  forbidden.  (See  discussion  article  9, 
section  3,  subheading,  "Commutations — Illinois  Central  Railroad  Company," 
and  article  9,  section  6,  subheading  "Commutation  of  state  taxes.") 


Special  assessments  and  special  taxation. 
The  application  of  the  rule  of  uniformity  with  reference  to  special 
assessments  and  special  taxation  is  considered  elsewhere  in  this  volume. 
It  will  not  be  necessary,  therefore,  to  consider  the  subject  at  this  time. 
(See  discussion  article  9,  section  9,  sub-heading  "Special  assessments  and 
special  taxation  for  local  improvements,"  center  subheading,  "In  general."  > 


Assessment  officers. 

This  section  of  the  constitution  expressly  requires  that  the  value  of 
property  for  the  purposes  of  taxation  shall  "be  ascertained  by  some  person 
or  persons  to  be  elected  or  appointed  in  such  manner  as  the  General  Assem- 
bly shall  direct  and  not  otherwise."  No  person  can  act  as  an  assessor 
unless  he  is  appointed  or  elected  to  that  office  in  the  manner  prescribed 
by  the  General  Assembly.  And  the  General  Assembly'  cannot  confer  on 
the  courts  the  power  to  assess  property  for  the  purposes  of  taxation. 
"In  the  creation  of  the  three  departments  of  government  the  authority  to- 
tax  has  necessarily  been  given  to  the  legislative  branch.  'The  power  ta 
tax  is  not  judicial'  .  .  .  It  is  incompetent  for  the  legislature  to  confer 
the  power  to  tax  upon  the  judiciary  or  the  executive  branch  of  government. 
The  assessment  of  taxes  is  not  a  judicial  act;  it  partakes  of  no  element  of 
a  judicial  character."  ^* 

The  courts,  therefore,  have  no  power  to  fix  the  value  of  property  for 
the  purposes  of  taxation.  And  it  is  largely  for  this  reason  that  the  courts 
will  not  interfere  with  an  assessment  of  property  unless  there  is  a  clear 


«» School   Directors   v   School   Directors,    232   111.    322    (1908). 


202  Article  9,  Section  1 

showing  of  fraudulent  conduct  on  the  part  of  the  assessor  with  respect  ti> 
the  objecting  tax  payer.  If  the  courts  should  raise  or  lower  assessments 
of  property  according  to  their  views  as  to  the  value  of  the  property  in 
controversy  they  would  be  substituting  their  judgment  for  that  of  the 
assessor  and  the  effect  of  such  action  would  be  to  make  the  courts  the 
assessing  officers  contrary  to  that  provision  of  the  constitution  which  requires 
the  assessing  officers  to  be  elected  or  appointed  in  such  manner  as  the  General 
Assembly  shall  prescribe.^®  But  the  courts  will  interfere  if  an  assessment 
has  been  made  with  the  intention  of  committing  a  fraud  against  a  tax 
payer"  and  will  also  issue  writs  ot  mandamus  to  compel  the  assessing 
authorities  to  observe  the  requirements  of  law  with  reference  to  property 
assessments.^  (See  preceding  center  subheading,  "Assessment  of  property 
lor  the  purposes  of  taxation.") 

However,  the  General  Assembly  may  provide  that  different  officers 
shall  assess  different  classes  of  property.  This  provision  of  the  constitu- 
tion does  not  mean  that  the  same  officer  or  same  class  of  officers  shall 
assess  all  property  for  the  purposes  of  taxation.  Thus,  the  General  Assem- 
bly may  provide  that  the  State  Board  of  Equalization  shall  assess  railroad 
property  and  the  capital  stock  and  franchises  of  certain  corporations,  and 
and  that  the  local  assessors  shall  assess  all  other  property.*^  And  no  assessor 
may  assess  property  required  by  law  to  be  assessed  by  some  other  officer. 
If  a  statute  requires  the  assessment  of  railroad  property  by  the  State 
Board  of  Equalization,  an  assessment  of  such  property  by  local  assessors 
is  void." 


Necessity  for  assessment  of  property. 
Under  this  section  of  the  constitution  there  can  be  no  lawful  levy  of 
a  tax  on  property  without  an  assessment  or  valuation.*^  And  it  has  been 
intimated  in  some  of  the  judicial  decisions  that  there  must  be  an  assess- 
ment for  each  tax — that  is,  if  taxes  are  levied  yearly,  there  must  be  yearly 
assessments.*^  In  Crozer  v  People,-*"  however,  it  was  held  that  the  provisions 
of  the  present  revenue  law  which  provide  for  the  annual  levy  of  taxes  but 
require  only  quadrennial  assessments  of  real  estate  are  valid.  But  it 
must  be  admitted  that  the  revenue  law  provides  for  the  yearly  revision  of 
the  assessment  of  real  estate.  The  assessment  officers  are  authorized  to 
add  to  or  lower  the  assessment  on  any  particular  parcel  of  real  estate  in 
any  year  between  the  years  of  the  quadrennial  assessments.  Under  these 
circumstances  it  might  well  be  said  that  the  revenue  law  provides  for  yearly 
assessments  of  real  estate  as  well  as  yearly  tax  levies. 


Taxation  of  occupations,  franchises  and  privileges.  The  last  clause  of 
this  section  of  the  constitution  authorizes  the  levy  of  taxes  in  certain  cases 
otherwise  than  in  proportion  to  the  value  of  property. 


89  Spencer  and  Gardner  v  People.  68  111.  510  (1873);  Republic  Life  In- 
surance Co.  V  Pollak.  75  111.  292  (1874);  Hulbert  v  People,  189  111.  114  (1901); 
People's    Gas    Li^ht    Co.    v    Stuckhart.    286    111.    164     (1919). 

^"Pacific  Hotel  Co.  v  Lieb.  83  111.  602  (1876):  People  v  K.  &  H.  Bridge  Co., 
287   111.  246    (1919). 

"State  Board  of  Equalization  v  People,  191  111.  528  (1901);  see,  also.  First 
National   Bank   of   Urbana   v    Holmes.    246    111.    362    (1910). 

"Sterling:  Gas  Co..  v  Hierby.  134  111.  557  (1890):  Hub  v  Hanberer,  211  111. 
42   (1904). 

«C.  &.  A  R.  R.  Co.  V  People,  98  111.  350  (1881);  People  v  Wiserins  Ferry 
Co.,    257    111.    452    (1913);    see.    also.   DuPagre   County    v   .Tenks,    65    111.    275    (1872). 

^•'Hodgres  v  Crowley.  186  111.  305  (1900);  Howe  v  People.  86  111.  288  (1877); 
but   S(^^   Raymond   v  Hartford   Fire   Insuarnce   Co.    196    111.    329    (1902). 

4SHodg-es  V  Crowley.  186  111.  305  (1900);  Pettibone  v  W.  Chicago  Park 
Commissioners,  215  111.  304  (1905);  Town  of  Lebanon  v  O.  &  M.  Ry.  Co.,  77  111. 
539    (1875). 

*"  206   111.   464    (1904). 


Article  9,  Section  1  203 

In  general. 

The  first  clause  of  this  section,  as  has  already  been  pointed  out,  relates 
to  taxes  upon  property.  The  general  rule  with  respect  to  property  taxes  is 
that  such  taxes  must  be  uniform  and  equal.  And  for  the  purpose  of  main- 
taining uniformity  and  equality  the  constitution  requires  that  all  property 
taxes  shall  be  levied  in  proportion  to  the  value  of  the  property  taxed  and 
that  all  property,  except  as  exempted  by  the  constitution,  shall  be  taxed  la 
proportion  to  value.  It  is  true  that  the  opinion  of  the  court  in  the  case 
of  Raymond  v  Hartford  Fire  Insurance  Company*^  intimates  that  under 
certain  circumstances  property  taxes  for  state  purposes  may  be  imposedl 
otherwise  than  in  proportion  to  value.  (See  discussion  of  that  case  pre^^ 
ceding  center  subheading  "Uniformity").  But  the  general  rule  is  that 
property  taxes  are  not  uniform  unless  levied  on  all  property  in  proportion 
to  value.  Under  the  last  clause  of  this  section,  however,  the  General  As- 
sembly may  tax  occupations,  franchises  and  privileges  otherwise  than  irt 
proportion  to  value,  and  such  taxes  are  generally  imposed  in  addition  to 
taxes  on  property.  Occupation  and  franchise  taxes  are  not  void  for  want 
of  uniformity  merely  because  they  may  be  imposed  on  some  other  basis, 
than  value.^^  The  only  rule  of  uniformity  required  with  respect  to  suck 
taxes  is  that  they  shall  be  uniform  upon  the  class  upon  which  they  operate.^' 

The  power  of  the  General  Assem.bly  to  levy  occupation  and  franchise 
taxes  is  not  limited  to  the  objects  and  subjects  mentioned  in  the  last  clause 
of  this  section.  Under  the  provisions  of  section  2  of  article  9  the  General 
Assembly  may  impose  such  taxes  on  any  and  all  occupations  and  franchises.** 
And  this  power  may  be  delegated  to  cities  and  villages  by  the  General  As- 
sembly.^^  But,  while  the  General  Assembly  may  tax  all  occupations  and 
franchises,  subject  only  to  the  rule  of  uniformity  as  to  class,  cities  and  vil- 
lages, although  they  may  be  given  the  same  general  power  as  the  General 
Assembly,  can  tax  only  such  occupations  and  franchises  as  are  expressly  in- 
cluded in  the  statute  delegating  the  power  to  impose  such  taxes."  (See 
discussion  article  9,  section  2) 


License  fees. 

The  power  of  the  General  Assembly,  and  of  municipalities,  under  a 
proper  delegation  of  power,  to  impose  license  fees  as  a  condition  precedent 
to  the  right  to  engage  in  certain  callings  or  occupations,  or  to  exercise 
franchises  and  privileges,  has  generally  been  sustained.  Sometimes  the' 
license  fee  has  been  sustained,  not  as  a  tax,  but  as  a  regulation  of  an  occu- 
pation or  franchise  under  the  police  power  of  the  state.  In  other  cases- 
such  license  fees  have  been  upheld  as  taxes  imposed  in  accordance  with, 
this  provision  of  the  constitution.  TUere  is,  of  course,  a  definite  distinction; 
between  a  license  fee  imposed  as  a  means  of  regulation  and  a  fee  imposed 
for  the  purpose  of  revenue.  If  the  fee  is  exacted  as  a  means  of  regulation- 
there  is  no  need  for  compliance  with  the  constitutional  requirements  con- 
cerning uniformity  of  taxation.     But,  if  the  fee  is  exacted  for  revenue  pur- 


*7  196  111.  829   (1902):  see.  also.   Sterling  Gas  Co.  v  Higby,   134  111.  557   (1890^* 

*»  Metropolis   Theatre  Co.   v  City   of  Chicago,    246   111.    20    (1910). 

'«;»Harder's    Storage   Co   v    City   of   Chicago.    235    111.    58    (1908). 

»»  Price  V  People.   193  111.   114   (1901);  Bessette  v  People,   193   111.  334    (1901). 

SI  City  of  East  St.  Louis  v  Wehrung.  46  111.  392  (1862);  Wiggins  v  City  of 
Chicago,  68  111.  372  (1873);  AValker  v  City  of  Springfield,  94  111.  364  (1880). 
There  has  been  some  confusion  as  to  the  source  of  the  power  of  cities  and! 
villages  to  levy  occupation  and  franchise  taxes.  In  Braun  v  City  of  Chicago^. 
110  111.  186  (1884)  it  was  held  that  this  section  of  the  constitution  had  no- 
bearing  on  the  power  of  cities  and  villages  to  impose  such  taxes,  and  that 
the  power  of  such  municipalities  to  impose  them  was  controlled  solely  by  sec- 
tions 9  and  10  of  article  9.  In  Banta  v  City  of  Chicago.  172  111.  204  (1898)  the 
court  held  that  cities  and  villages  had  no  power  under  sections  9  and  10  of 
article  9  to  levy  such  taxes,  and  that  the  power  to  do  so  is  derived  only  as  a 
delegation  from  the  General  Assembly  of  its  powers  under  this  section  of  the 
constitution. 

53  Condon  v  Village  of  Forest  Park,  278  111.  218   (1917). 


204  Article  9,  Section  1 

poses  then  it  appears  that  the  constitutional  requirement  that  occupation 
and  franchise  taxes  shall  be  uniform  as  to  the  class  upon  which  they  operate 
must  be  observed.  Sometimes  it  is  difficult  to  ascertain  whether  a  license 
fee  is  imposed  as  a  means  of  regulation  or  for  the  purposes  of  revenue.  In 
such  a  case  it  would  seem  that  the  right  to  impose  the  license  fee  will  be 
sustained  as  being  for  regulation  purposes,  regardless  of  other  considera- 
tions, if  the  subject  of  the  fee  is  properly  a  subject  for  police  regulation.^' 
But  sometimes  the  subject  is  not  within  the  police  power  and  in  that  event 
the  fee  must  stand  or  fall  as  a  tax  under  the  last  clause  of  this  section."* 

In  a  large  number  of  early  cases',  both  under  the  constitution  of  1848 
and  the  constitution  of  1870,  the  court  took  the  view  that  license  fees,  even 
if  exacted  for  the  purposes  of  revenue,  were  not  taxes  in  a  constitutional 
sense,  and  that  there  was  no  need  to  observe  the  rule  of  uniformity  as  to 
class.  Thus,  it  has  been  held  that  license  fees  imposed  upon  foreign  in- 
surance companies,®^  liquor  dealers,^  auctioneers,"  real  estate  brokers,®' 
and  itinerant  merchants"^  are  not  taxes  in  a  constitutional  sense.  But  it 
must  be  admitted  that  in  some  of  these  cases  the  legislative  acts  might  have 
been  sustained  as  police  measures.  In  the  later  cases,  however,  the  court 
points  out  that,  unless  a  measure  imposing  a  license  fee  can  be  sustained 
as  a  police  regulation,  it  must  be  regarded  as  a  tax  and  conform  to  the 
constitutional  requirements  with  reference  to  uniformity  as  to  class.  "Al- 
though it  has  sometimes  been  said  that  a  license  fee  exacted  for  the  purpose 
of  revenue  is  not  a  tax,  such  statement  must  be  understood  as  meaning 
that  it  is  not  a  tax  in  the  sense  of  the  property  tax  authorized  by  the  con- 
stitution, which  must  be  levied  according  to  valuation,  since  it  is  a  tax  and 
is  levied  by  virtue  of  paragraph  41.  The  question  here  is  whether  this  or- 
dinance is  valid  either  as  an  exercise  of  the  police  power  or  the  power  of 
taxation  granted  to  municipalities  by  the  paragraph  in  question.'"* 

With  respect  to  a  statute  or  ordinance  imposing  a  license  fee  for  rev- 
enue purposes  the  question  to  be  determined  is  whether  or  not  the  meas- 
ure will  operate  uniformly  upon  all  in  the  same  class.  When  is  the  consti- 
tutional provision  complied  with?  "The  only  limitation  found  in  our  con- 
stitution upon  the  power  of  the  legislature  to  tax  occupations  is,  that  the 
tax  shall  be  'uniform  as  to  the  class  upon  which  it  operates.'  The  power 
given  to  cities  and  villages  to  tax  and  regulate  theatrical  and  other  exhi- 
bitions, shows  and  amusements,  carries  with  it  the  power  to  classify  the 
subjects  and  to  fix  a  different  license  fee  for  each  class.  The  power  to 
classify  must  be  exercised  in  a  reasonable  manner,  but  a  very  wide  range 
of  discretion  is  allowed  legislative  bodies  in  the  exercise  of  this  power. 
Classification  of  subjects  for  taxation  may  not  be  made  arbitrarily,  but 
necessarily  there  must  be  great  freedom  of  discretion,  even  though  it 
results  in  ill-advised,  unequal  and  oppressive  legislation.  A  classification 
will  be  sustained  where  it  is  based  irpon  a  reasonable  difference  of  situa- 
tions or  conditions.""^  No  case  has  been  found  in  which  the  courts  of  this 
state  have  held  a  licensing  measure  in  conflict  with  the  requirement  of 
uniformity  as  to  class.  On  the  other  hand  it  has  been  held  that  the  im- 
position of   a  larger   license   fee   on   a   foreign    insurance   company   than   a 


^City  of  Paxton  v  Fitzsimmons.  253  111.  355  (1912);  see.  also.  C.  W.  &  V. 
Coal   Co.    v    People,    181    111.    270    (1899). 

^'Condon   v   Village   of   Forest   Park,    278   111.    218    (1917). 

5-' People  V  Thurber.  13  111.  554  (1852);  Walker  v  City  of  Springfield,  94 
111.   364    (1880). 

^«City  of  East  St.  Louis  v  Wehrung,  46  111.  392  (1868);  Timm  v  Harrison, 
109  111.   593    (1884);   U.   S.  Distilling  Co.  v  City  of  Chicago,   112   111.   19    (1884). 

57  Wiggins   V   City  of   Chicago,    68   111.    372    (1873). 

^spraun  v  City  of  Chicago,   110   111.    186    (1884). 

E»City  of  Carrollton  v  Bazzette,  159  III.  284  (1896);  see.  also,  Bessette  v 
People.    193    111.    334     (1901). 

0"  Condon  v  Village  of  Forest  Park.  278  111.  218  (1917);  see.  als.o,  Banta  v 
City  of  Chicago,  172  111.  204  (1898);  Price  v  People,  193  111.  114  (1901);  Hard- 
er's  Storage  Co.  v  City  of  Chicago.  235  111.  58  (1908);  Metropolis  Theatre  Co.  v 
City   of   Chicago,    246    111.    20    (1910). 

«i  Metropolis  Theatre  Co.  v  City  of  Chicago.   24G  III.   20    (1910). 


Article  9,  Section  1  205 

domestic  insurance  company  is  not  forbidden  i''^  and  that  dram  shops  in  one 
part  of  a  city  may  be  required  to  pay  a  larger  lic^se  fee  than  dram  shops 
in  other  parts  oi  the  same  city.*"   (See  discussion  article  9,  section  2). 


Inheritance    taxes. 

The  inheritance  tax  act  of  1895  which  provides  for  certain  exemptions 
and  prescribes  different  rates  of  taxation  for  different  classes  of  heirs  v/as 
challenged  on  two  grounds:  (1)  That  it  imposed  a  property  tax  otherwise 
than  in  proportion  to  value;  and  (2)  that  if  it  did  not  impose  a  property 
tax,  it  did  not  operate  uniformly  upon  all  persons  in  the  same  class.  The 
court  held  that  the  inheritance  tax  act  did  not  impose  a  property  tax, 
but  a  tax  upon  the  right  to  succeed  to  property.  With  reference  to  the 
second  point  the  court  held  that  the  classifications  prescribed  by  the  act 
were  reasonable  and  that  therefore  the  rule  of  uniformity  as  to  class  was 
not  violated.®^ 


Property  taxes  otherwise  than   in   proportion   to  value. 

The  second  clause  of  this  section  of  the  constitution  has  generally 
been  held  not  to  give  authority  to  levy  property  taxes.  Its  main  purpose 
is  to  authorize  with  respect  to  certain  subjects,  the  imposition  of  taxes 
otherwise  than  in  proportion  to  value,  and  in  addition  to  taxes  on  property. 
However,  the  opinion  of  the  court  in  the  case  of  Raymond  v  Hartford  Fire 
Insurance  Company^'  seems  to  hold  that  the  General  Assembly,  with  refer- 
ence to  the  property  of  any  person  or  corporation  subject  to  an  occupation, 
franchise  or  privilege  tax,  may  provide  a  method  of  imposing  taxes  for 
state  purposes  otherwise  than  in  proportion  to  value.  (See  discussion  of 
that  case  preceding  center  subheading,  "Uniformity").  And  it  has  also 
been  held  in  several  cases  that  a  tax  on  the  capital  stock  of  corporations  is 
levied  under  the  second  clause  of  this  section  of  the  constitution,  even 
though  such  a  tax  is  regarded  as  a  property  tax.®"  However,  it  would  seem 
that  these  cases  are  necessarily  overruled  by  the  decision  in  Consolidated 
Coal  Company  v  Miller."^  In  that  case  the  question  involved  was  whether 
or  not  the  General  Assembly  could  exempt  from  taxation  the  capital  stock 
of  certain  corporations.  It  was  contended  that,  if  capital  stock  taxes  were 
imposed  under  the  last  clause  of  this  section,  the  only  question  for  the 
court  to  determine  was  whether  or  not  the  law  providing  for  the  taxation 
of  capital  stock  was  uniform  as  to  class — that  is,  whether  or  not  there  was 
a  reasonable  basis  for  distinction  between  the  corporations  whose  capital 
stock  was  taxable  and  those  whose  capital  stock  was  exempt  from  taxation. 
The  court  held,  however,  that  the  question  of  uniformity  as  to  class,  or  the 
reasonableness  of  the  legislative  classification  of  corporations  for  the  pur- 
pose of  imposing  capital  stock  taxes,  had  no  application;  that  the  only 
question  to  determine  was  whether  or  not  the  General  Assembly  had  the 
power,  under  section  3  of  article  9  of  the  constitution,  to  exempt  from  taxa- 
tion the  capital  stock  of  certain  corporations;  and  that,  since  section  3  of 
article  9  did  not  authorize  the  exemption,  the  General  Assembly  had  no  such 


«' Hughes  V  City  of  Cairo,  92  111.  339  (1879);  Home  Insurance  Co.  v  Swigert, 
104   111.    653    (1882). 

«3City  of  East  St.  Louis  v  Wehrung-,  46  111.  892  (1868);  see,  also  Timm  v 
Harrison.  109  111.  593  (1884);  Wiggins  Ferry  Co.  v  City  of  East  St.  Louis,  102 
111.    560    (1882);    Hew? and   v    City   of   Chicago,    108    111.    496    (1884). 

•»  Kochersperger  v  Drake.  167  111.  122  (lSn7);  Magonn  v  Illinoip  Trust, 
and  Savine-s  Bank,  170  U.  S.  283  (1897);  see,  also  In  re  Estate  of  Speed,  216 
111.  23  (1905);  In  re  Estate  of  Benton.  234  111.  366  (1908);  People  v  Tatge,  267 
ni.    634    (1915). 

•"s  196    111.    329    (1902). 

««  Porter  v  R.  R.  I.  &  St.  L.  R.  R.  Co..  76  111.  561  (1875);  Sterling  Gas  Co.  v 
Higb^'.    134   111.    557    (1890);   see.   also.   Hub  v  Hanberg,    211    111.   43    (1904). 

«'236  111.  149   (1908);  see,  also,  People  v  National  Box  Co.  248  111.  141   (1911). 


306  Article  9,  Sections  2,  3 

power.  If  the  question  of  uniformity  as  to  class  has  no  application  to  such 
a  case  it  seems  necessatily  to  follow  that  capital  stock  taxes  are  imposed 
under  the  first  clause  of  section  1  of  this  article  and  not  the  last  clause. 


Section  2.  The  specification  of  the  objects  and  subjects  of 
taxation  shall  not  deprive  the  General  Assembly  of  the  power  to  re- 
quire other  subjects  or  objects  to  be  taxed,  in  such  manner  as  may 
be  consistent  with  the  principles  of  taxation  fixed  in  this  Consti- 
tution. 


In  the  case  of  Banta  v  City  of  Chicago"^  the  court  said  that  taxes  on 
occupations,  franchises  and  privileges  could  be  imposed  only  on  those 
occupations,  franchises  and  privileges  that  were  expressly  enumerated  in 
section  1  of  this  article.  But  in  a  later  case  it  was  said:  "The  familiar 
canon  of  construction  that  such  enumeration  should  be  held  by  implication 
to  inhibit  the  taxation  of  any  occupation  not  specified  in  the  section,  cannot 
be  given  application,  for  the  reason  such  construction  is  expressly  for- 
bidden by  section  2  of  article  9  of  the  organic  law.  Expressions  in  Banta  v 
City  of  Chicago,  supra,  that  such  canon  of  construction  is  applicable  were 
made  inadvertently."®*  In  accordance  with  that  rule  the  right  of  the 
state  to  exact  a  license  fee  from  persons  engaged  in  operating  private  em- 
ployment agencies  was  sustained,  although  that  occupation  or  business  is 
not  enumerated  in  section  1  of  article  9.  And  so  the  General  Assembly 
may  authorize  cities  and  villages  to  levy  or  impose  a  license  fee  on  livery 
stable  keepers,  or  a  wheel  tax  on  vehicles  using  the  public  streets.'" 


Section  3.  The  property  of  the  State,  counties,  and  other  mu- 
nicipal corporations,  both  real  and  personal,  and  such  other  property 
as  may  be  used  exclusively  for  agricultural  and  horticultural  socie- 
ties, for  school,  religious,  cemetery  and  charitable  purposes,  may  be 
exempted  from  taxation ;  but  such  exerhption  shall  be  only  by  gen- 
eral law.  In  the  assessment  of  real  estate  incumbered  by  publid 
easement,  any  depreciation  occasioned  by  such  easement  may  be  de- 
ducted in  the  valuation  of  such  property. 


Necessity  for  legislation.  This  section  of  the  constitution  is  not  self- 
executing.  No  property  is  entitled  to  exemption  from  taxation  by  virtue 
of  the  constitution  itself.  Exemptions  from  taxation  can  be  had  only  under 
legislative  enactments."^  The  constitution  authorizes  the  General  Assembly 
to  pass  laws  exempting  certain  classes  of  property  from  taxation.  But 
the  General  Assembly  need  not  act,  or  if  it  does  act,  it  need  not  exempt 
all  property  authorized  by  the  constitution  to  be  granted  exemption.  Fre- 
quently the  courts  have  denied  the  right  of  exemption  from  taxation  to 
certain  property  not  because  there  was  no  constitutional  authority  for  the 


«8  172   111.   204    (1898). 

8»  Price  V  People.  193  111.  114  (1901);  see,  also,  Bessette  v.  People,  193 
111.   341    (1901);   Report  Attorney   General   1916,   p.   390. 

^Howland  v  City  of  Chicago,  108  111.  496  (1884);  Harder's  Storage  Co.  v  City 
of  Chicago,   235   111.   58    (1908). 

^1  People  v  Andersen,  117  111.  50   (1886);  In  re  Walker,  200  111.  566   (1903). 


Article  9,  Section  3  207 

exemption  thereof,  but  because  the  General  Assembly,  while  it  might  have 
extended  the  right  of  exemption  to  that  property-,  had  not  seen  fit  to  do 
so/^  And  the  courts  have  always  taken  the  position  that  statutes  granting 
tax  exemptions  should  be  construed  strictly  in  favor  of  the  state.  Property 
will  not  be  entitled  to  exemption  from  taxation  unless  it  is  clearly  within, 
not  only  the  constitutional  authorization,  but  the  terms  of  the  statute  under 
which  the  right  to  exemption  is  claimed."  And  the  burden  is  on  the 
person  asserting  the  claim  of  exemption  from  taxation  v/ith  respect  to 
certain  property  to  prove  clearly  and  conclusively  that  the  property  in 
question  is  exempt  under  the  provisions  of  a  constitutional  statute.'^ 

Because  of  the  fact  that  all  exemptions  from  taxation  should  be  con- 
strued strictly,  a  statute  providing  for  tax  exemptions  will  not  be  given  a 
retrospective  effect  unless  it  is  clear  that  the  General  Assembly  so  intended. 
And  so  it  was  held  in  People  v  Deutsche  Gemeinde"  that  property,  which 
became  exempt  under  a  statute  effective  July  1,  1909,  was  liable  for  the 
taxes  levied  thereon  prior  to  that  date. 


Power  of  the  General  Assembly.  This  section  of  the  constitution  is  a 
limitation  on  the  power  of  the  General  Assembly.  "The  enumeration  in  the 
constitution  of  certain  specified  property  which  may  be  exempted  is  a 
limitation  upon  the  power  of  the  legislature  to  exempt  any  other  property, 
under  the  well  known  rule  that  an  enumeration  of  certain  specified  things 
excludes  all  others  not  therein  mentioned."'®  In  accordance  with  the  rule 
thus  announced  it  has  been  held  that  the  General  Assembly  has  no  power 
to  exempt  from  taxation  promissory  notes  held  by  a  building  and  loan  as- 
sociation and  executed  by  its  members,  moneys  held  by  fraternal  bene- 
ficiary societies,  and  the  capital  stock  of  corporations."  And  the  Attorney 
General  has  held  that  there  is  no  constitutional  authority  to  exempt  the 
property  of  the  state  masonic  home  for  aged  masons,  the  Grand  Army  of 
the  Republic,  or  war  veterans,  or  to  exempt  shares  of  bank  stock.'*  In 
Easton  v  Board  of  Review'®  it  was  held  that  city  warrants  in  the  hands 
of  a  purchaser  were  not  exempt  from  taxation.  The  decision  was  based 
on  the  fact  that  there  was  no  law  authorizing  the  exemption  of  such  war- 
rants but  the  court  was  evidently  of  the  opinion  that  the  General  Assembly 
would  have  no  constitutional  power  to  provide  for  their  exemption. 

The  constitution  provides  that  "such  .  .  .  property  as  may  be 
used  exclusively  for  .  .  .  school,  religious,  cemetery  and  charitable 
purposes  may  be  exempted  from  taxation  ...  by  general  law."  This 
is  a  limitation  on  the  power  of  the  General  Assembly.  Property  used  in 
connection  with  any  one  or  more  of  these  purposes  cannot  be  granted  ex- 
emption from  taxation  unless  usecZ  exclusively  for  such  purpose  or  purposes. 


7^  Cook  County  v  City  of  Chicag-o,  103  111.  646  (1882);  In  the  matter  of 
Swigert,  123  111.  267  (1887);  People  v  City  of  Chicago,  124  111.  636  (1888); 
Sanitary  District  of  Chicago  v  Martin,  173  111.  243  (1898);  People  v  St.  Francis 
Academy,   233    111.   26    (1908). 

^3  People  V  Seaman's  Friend  Society,  87  111.  246   (1877);  Monticello  Seminary 

V  People,  106  111.  398   (1883);  People  v  Anderson,  117  111.  50   (1886);  Montgomery 

V  Wyman,  130  111.   17    (1889);  McCullough  v  Board  of  Review.   186  111.   15    (1900); 
Sanitary  District  of  Chicago  v  Hanberg-,  226  111.  480    (1907);  Board  of  Directors 

V  Board   of    Review.    248    111.    590    (191i). 

7*  People  v  Deutsche  Gemeinde,   249  111.   132    (1911). 

^5  249    111.    132    (1911). 

•^"People  V  Deutsche  Gemeinde,  249  111.  132  (1911).  The  same  rule  was 
applied  under  the  constitution  of  1848;  see  People  v  Barger,  62  111.  452  (1872). 
The  property  of  the  University  of  Illinois  is  State  property  and  may,  therefore, 
be  granted  exemption  from  taxation.  See  Board  of  Trustees  v  Board  of  Super- 
visors,   76    111.    184    (1875). 

'^  Loan  and  Homestead  Association  v  Keith.  153  111.  609  (1894);  In  re  St. 
Douis  L.  &  I.  Co.,  194  111.  609  (1902);  Supreme  Lodge  v  Board  of  Review,  223 
111.  54  (1906);  Consolidated  Coal  Co.  v  Miller,  236  111.  149  (1908);  People  v  Na- 
tional   Box    Co.,    248    111.    141    (1911). 

^8  Report  Attorney  General,  1908.  p.  436;  1910,  pp.  60,  62;  1912,  p.  742;  see, 
also.    Report   Attorney   General    1910,    pp.    59,    566,    576. 

-9  183    111.    255    (1899). 


208  Article  9,  Section  3 

When  is  property  used  exclusively  for  any  one  or  more  of  these  purposes? 
This  question  has  caused  considerable  difficulty  and  very  few  of  the  decis- 
ions of  the  Supreme  Court  on  this  point  have  been  concurred  in  by  all  of 
the  judges  of  that  court;  in  fact  most  of  the  decisions  have  been  made  by  a 
bare  majority  of  the  judges.  The  effect  of  the  decisions  however,  is  to  place 
a  strict  construction  on  the  word  "exclusively." 

With  reference  to  the  exemption  from  taxation  of  property  used  ex- 
clusively for  school  purposes  it  has  been  held  that  a  school  "is  a  place 
where  systematic  instruction  in  useful  branches  is  gi^'^en  by  methods  com- 
mon to  schools  and  institutions  of  learning,  which  would  make  the  place 
a  school  in  the  common  acceptation  of  the  word",  and  that  the  property 
of  dancing,  riding  and  deportment  schools  can,  under  no  circumstances,  be 
released  from  its  liability  to  pay  taxes.'"'  But  when  is  property  owned  by  a 
school,  such  as  is  contemplated  by  the  constitution,  used  exclusively  for 
school  purposes?  Land  owned  by  a  school  but  not  used  for  any  purpose  is 
not  a  proper  subject  for  exemption  from  taxation."^  "The  fact  that  the 
rents  and  revenues  of  property  are  devoted  to  school  purposes  does  not 
exempt  the  property  from  taxation.  The  property  itself  must  be  directly 
used  for  school  purposes  before  it  is  entitled  to  be  exempted."*"-  But  lands 
owned  by  a  private  educational  institution  and  used  for  the  purpose  of 
growing  vegetables  and  fruits  for  the  use  of  those  attending  the  institution, 
and  not  with  a  view  to  profit,  are  used  exclusively  for  school  purposes  and, 
as  such,  are  subject  to  exemption  from  taxation."^ 

"As  applied  to  the  uses  of  property,  a  religious  purpose  means  a  use  of 
such  property  by  a  religious  society  or  body  of  persons  as  a  stated  place  for 
public  worship,  Sunday  schools  and  religious  instruction."^  It  has  -been  held 
that  there  is  no  constitutional  authority  for  the  exemption  of  "parsonages  or 
residences  actually  and  exclusively  used  by  persons  devoting  their  entire 
time  to  church  work."  In  People  v  First  Congregational  Church*'  it  was 
said:  "Where  a  building  is  used  primarily  for  religious  purposes  and 
secondarily  for  some  secular  purpose,  as  for  the  business  meetings  of  the 
church  corporation,  or  if  there  should  be  in  the  church  building  some 
room  used  as  a  lodging  room  for  the  sexton  or  some  other  person  employed 
by  the  organization,  the  building  would  not  thereby  lose  its  character  as 
one  used  for  religious  purposes,  but  where  the  property  is  used  primarily 
for  a  family  residence  by  the  pastor  it  cannot  be  held  that  it  is  used  ex- 
clusively for  religious  purposes.  The  legislature  cannot,  by  its  enactment, 
make  that  a  religious  purpose  which  in  fact  is  not  a  religious  purpose." 

A  private  hospital  which  receives  free  of  charge  all  who  apply  for  ad- 
mission, but  which  maintains  more  desirable  rooms  for  those  who  are  wil- 
ling to  pay  for  them,  is,  nevertheless,  an  institution  for  charitable  purposes, 
if  the  money  that  it  receives  is  used  for  the  enlargement  and  betterment 
of  the  hospital  and  not  with  a  view  to  profit.^® 

(As  to  the  power  of  the  General  Assembly  to  exempt  property  from 
special  assessments  and  special  taxation,  see  discussion  subsequent  sub- 
heading, "Special  assessments  and  special  taxation'') 


Property  donated  for  school  purposes.  Section  2  of  article  8  of  the 
constitution  provides  that  "all  lands,  moneys,  or  other  property,  donated 
granted  or  received  for  school,   college,   seminary  or  university  purposes, 


8«  People  V  Deutsche  Gemeinde,    249   111.   132    (1911). 

81  People  V  Deutsche  Gemeinde,  249  111.  132  (1911);  Theologrical  Seminary 
V  People,  101  111.  578  (1882);  Monticello  Seminary  v  Board  of  Review,  242  111. 
477    (1909). 

82  Monticello  Seminary  v  Board  of  Review,  249  111.  481   (1911). 
8»  Monticello   Seminary  v   People,    106   111.    398    (1883). 

8*  People  v  Deutsche  Gemeinde,   249   111.   132    (1911). 

88  232  111.  158  (1908);  see.  also,  First  Congregational  Church  v  Board  of 
Review,   254   111.   220    (1912);  but  see  In  re  Walker.   200   111.   566    (1903). 

8«  Sisters  of  St.  Frances  v  Board  of  Review,  231  III.  317  (1907).  See  People 
v   Seaman's   Friend  Society,    87    111.    246    (1877). 


Article  9,  Section  3  209 

and  the  proceeds  thereof,  shall  be  faithfully  applied  to  the  objects  for 
which  such  gifts  or  grants  were  made."  This  section  of  article  8  relates  to 
donations  of  property  for  school  purposes  made  prior  to  the  adoption  of 
the  present  constitution.  But  the  property  of  schools,  which  is  included 
within  the  meaning  of  section  2,  is,  by  virtue  of  the  section  itself,  exempt 
from  general  taxation  and  from  special  assessments  and  special  taxation. 
(.See  discussion  article  8,  section  2.) 


Effect  of  the  exemption  provisions  in  special  charters  granted  prior  to 
1870.  Section  3  of  article  9  of  the  constitution  of  1848  provided  that  "the 
property  of  the  state  and  counties,  both  real  and  personal,  and  such  other 
property  as  the  General  Assembly  may  deem  necessary  for  school,  religious 
and  charitable  purposes,  may  be  exempted  from  taxation."  Under  this 
provision  the  General  Assembly  in  granting  special  charters  to  school, 
religious  and  charitable  corporations,  frequently  inserted  provisions  therein 
exempting  such  corporations  from  all  or  a  part  of  their  taxes.  In  the 
early  cases  after  the  adoption  of  the  constitution  of  1870  the 
Supreme  Court  of  Illinois  held  that  the  General  Assembly  under 
the  constitution  of  1848  had  no  power  to  "exempt  from  taxation 
property  owned  by  educational,  religious,  or  charitable  corporations  which 
was  not  itself  used  directly  in  aid  of  the  purposes  for  which  such  corpora- 
tions were  created,  but  which  was  held  for  profit  merely,  although  the 
profits  were  devoted  to  the  proper  purposes  of  such  corporations."  ^'  But 
this  holding  was  reversed  by  the  United  States  Sur>reme  Court  which 
held  that  the  General  Assembly,  under  the  constitution  of  1848,  had  full 
power  to  exempt  from  taxation  any  or  all  property  owned  by  such  corpora- 
tions, and  that  having  done  so  in  their  charters  a  binding  contract  was 
created.^^  The  Supreme  Court  of  this  state  then  adopted  the  view  of  the 
United  States  Supreme  Court.^  The  provisions  of  these  special  charters 
relating  to  exemption  from  taxation  are  construed  strictly,  however,  and 
unless  it  clearly  appears  that  the  property  claimed  to  be  exempt  is  in- 
cluded within  the  exemption  provisions  of  the  charters  the  claim  will  be 
denied.®*" 

However,  there  was  no  authority,  under  the  constitution  of  1848,  to 
exempt  the  property  of  school,  religious  and  charitable  corporations  from 
special  assessments.  (See  discussion  subsequent  subheading,  "Special 
assessments  and  special  taxation"). 


Commutations — Illinois  Central  Railroad  Company.  Commutation  of 
taxes  means  the  right,  privilege  or  duty  of  paying  a  specific  sum  of  money 
or  something  else  of  value  in  lieu  of  taxes  on  property  in  proportion  to  the 
value  of  the  property.  Since  the  effect  of  commutation  of  taxes  is  to  re- 
lieve certain  property  from  the  liability  to  pay  taxes  in  proportion  to 
value,  the  obvious  effect  is  to  exempt  that  property  from  taxation  in  the 
ordinary  and  usual  sense  of  that  word.  Under  the  constitution  of  1848 
it  was  held  that  there  was  no  prohibition  on  the  power  of  the  General 
Assembly  to  provide  for  the  commutation  of  taxes.  (See  discussion  article 
9,  section  6,  subheading,  "Commutation  of  state  taxes").  And,  while 
section  6  of  this  article  apparently  forbids  the  commutation  of  state  taxes, 
it  must  be  conceded  that  the  opinion  of  the  court,  in  the  case  of  Raymond  v 
Hartford  Fire  Insurance  Company,®*  seems  to  hold  that  the  General  Assem- 


8^  Northwestern  University  v  People,   86   111.   141    (1877). 

^'i  Northwestern  University  v  People,  99  U.  S.   309   (1878). 

8'' People  v  Soldier's  Home,  95  111.  561  (1880);  In  re  Northwestern  University, 
206  111.  64   (1903);  Northwestern  University  v  Hanberp:.   237  111.  185   (1908). 

'^Blooming-ton  Cemetery  Association  v  People,  170  111.  377  (1897);  People 
V  Theological  Union,  171  111.  304  (1898);  People  v  Bennett  Medical  College, 
248  111.  608   (1911):  Chicago  Theological  Seminary  v  Illinois,  188  U.  S.  662   (1903). 

«196  111.  329  (1902). 


210  Article  9,  Section  3 

bly,  under  the  last  clause  of  section  1  of  article  9,  may  nevertheless  pro- 
vide for  the  taxation  of  the  property  of  certain  persons  and  corporations 
for  state  purposes  by  a  method  otherwise  than  in  proportion  to  value. 
(See  discussion  of  that  case  article  9,  section  1,  center  subheading  "Uni- 
formity"; see,  also,  discussion  article  9,  section  6,  subheading  "Commuta- 
tion of  state  taxes,"  and  discussion  article  9,  section  9,  subheading,  "Com- 
mutation of  municipal  taxes"). 

The  Illinois  Central  Railroad  Company  was  incorporated  under  a 
special  act  of  the  General  Assembly  in  1851.  The  special  charter,  while 
making  detailed  provision  for  the  ta:?i'ation  of  the  property  of  the  railroad 
company,  expressly  provides  that  the  company  shall  pay  not  less  than 
seven  per  cent  of  its  gross  receipts  into  the  state  treasury  in  lieu  of  all 
other  taxes.  (Private  Laws  1851,  p.  61).  The  effect  of  these  provisions 
was  to  exempt  the  property  of  the  railroad  company  from  property  taxes. 
The  special  charter  of  the  railroad  was  expressly  affirmed  and  recognized 
by  the  present  constitution.  (See  separate  section  relating  to  the  Illinois 
Central  Railroad). 

The  exemption  from  ordinary  taxes  applies,  however,  only  to  the 
charter  lines  mentioned  in  the  special  charter.  Other  lines  of  the  railroad 
not  mentioned  in  the  charter  and  not  necessarily  incidental  to  the  operation 
of  the  charter  lines  are  subject  to  taxation  in  the  same  manner  as  other 
property.*-  But  switch  tracks,  turn-outs  and  bridges  necessary  to  the 
proper  operation  of  the  charter  lines  are  property  within  the  exemption 
provisions  of  the  special  charter  no  matter  when  constructed,  and  are  not 
subject  to  taxation  in  the  usual  manner."'  And  it  would  seem  that  any 
other  property  of  the  company,  even  though  not  used  directly  in  the  trans- 
portation of  persons  or  freight,  is  exempt  if  that  property  is  reasonably 
necessary  for  the  proper  and  efficient  operation  of  the  charter  lines.  Thus, 
a  stone  quarry  belonging  to  the  railroad  company,  and  used  for  the  purpose 
of  acquiring  necessary  stone  in  the  repair  of  the  roadbed  of  the  charter 
lines  is  exempt  from  ordinary  taxation.®*  But  a  grain  elevator  of  the  com- 
pany leased  to  private  parties,  and  apparently  not  necessary  for  the 
efficient  operation  of  the  charter  lines,  is  subject  to  taxation  in  the  same 
manner  as  other  property.®'  Nor  is  a  steamboat  of  the  company  used  for 
transporting  passengers  and  freight  across  the  Ohio  river  exempt  from 
the  usual  tax  on  property  even  though  the  only  purpose  of  the  boat  was 
to  facilitate  the  business  of  the  charter  lines  south  of  the  Ohio  river.  The 
court  took  the  view  that  the  charter  of  the  company  did  not  contemplate 
transportation  by  water  and  that,  therefore,  the  operation  of  the  steamboat 
was  not  incidental  or  indispensable  to  the  efficient  conduct  of  the  charter 
lines.®"  (See  discussion  article  9,  section  6,  subheading,  "Commutation  of 
state  taxes"). 

The  property  of  the  Illinois  Central  Railroad  Company,  however,  is  not 
exempt  from  special  assessments  and  special  taxation.  (See  discussion 
following  subheading.) 


32  state  of  Illinois  v  I.  C.  R.  R.  Co.,  246  111.  188  (1910).  The  charter  lines 
and  non-charter  lines  of  the  railroad  company  are  operated  as  one  system, 
and  it  is  sometimes  very  difficult  to  determine  the  gross  receipts  of  the  char- 
ter lines.  This  case  also  discusses  the  methods  by  which  the  g:ross  receipts 
of  the  charter  lines  are  to  be  ascertained.  See,  also,  People  v  I.  C.  R.  R.  Co.,  273 
111.   220    (1916). 

«■' State  Board  of  Equalization   v  Peonle,    229   111.    430    (1907). 

0*  People  v  I.  C.  R.  R.  Co.   231   111.   151    (1907). 

''^'In  re  Swigort,  119  111.  83  (1836);  I.  C.  R.  R.  Co.  v  People,  119  111.  137 
(1886). 

»«I.  C.  R.  R.  Co.  V  Irvin,  72  111.  452  (1874).  The  special  charter  also 
granted  large  tracts  of  land  to  the  railroad  company  and  with  reference  to  these 
lands  it  was  provided  that  "the  lands  selected  under  said  act  of  Congress,  and 
hereby  authorized  to  be  conveyed,  shall  be  exempt  from  all  taxation  imder 
the  laws  of  this  state  until  sold  and  conveyed  by  said  corporation  or  trustees." 
For  .iudicial  decisions  construing  this  provision,  see  Gilkerson  v  Brown,  61  111. 
486  (1871):  I.  C.  R.  R.  Co.  v  Goodwin.  94  111.  262  (1880):  Champaign  County  v 
Reed,   100  111.   304   (1881);  Champaign  County  v  Reed,    106   III.   389    (1883). 


Article  9,  Section  4  211 

Special  assessments  and  special  taxation.  This  section  of  article  9,  ex- 
pressly authorizes  the  exemption  from  taxation  of  the  property  of  the  state, 
counties  and  other  municipal  corporations,  property  used  exclusively  by 
agricultural  and  horticultural  societies,  and  property  u:ed  exclusively  for 
school,  religious,  cemetery  and  charitable  purposes.  But  what  is  meant  by 
"taxation"?  Does  that  term  include  special  assessments  and  special  tax- 
ation? It  has  been  held  that  there  is  no  constitutional  authority  for  the 
exemption  of  such  property  from  special  assessments  and  special  taxation."' 
The  property  of  the  state,  however,  is  exempt  from  special  assessments  and 
special  taxation,  because  section  26  of  article  4  provides  that  the  state 
"shall  never  be  made  defendant  in  any  court  of  law  or  equity.®^  (Sea  dis- 
cussion article  4,  section  26,  subheading,  "Suits  against  the  state  in  its  own 
name.") 

The  General  Assembly  under  the  constitution  of  1848  had  no  power  to 
exempt  property  from  special  assessments."'-'  (See  discussion  preceding  sub- 
heading "Effect  of  the  exemption  provisions  in  special  charters  granted  prior 
to  1870.") 

The  property  of  the  charter  lines  of  the  Illinois  Central  Railroad  Com- 
pany may  be  granted  exemption  from  general  taxation  but  not  from  special 
assessments  or  special  taxation.^      (See  discussion  preceding  sub-heading.) 

Property  donated  to  schools  prior  to  1870,  and  included  within  the  mean- 
ing of  section  2  of  article  8,  is  exempt  from  general  .taxation  and  special 
assessments  or  special  taxation.   (See  discussion  article  8,  section  2.) 


Section  4.  The  General  Assembly  shall  provide,  in  all  cases 
where  it  may  be  necessary  to  sell  real  estate  for  the  non-payment  of 
taxes  or  special  assessments,  for  State,  county,  municipal,  or  other 
purposes,  that  a  return  of  such  unpaid  taxes  or  assessments  shall  be 
made  to  some  general  officer,  of  the  county,  having  authority  to  re- 
ceive State  and  county  taxes ;  and  there  shall  be  no  sale  of  said  prop- 
erty for  any  of  said  taxes  or  assessments  but  by  said  officer,  upon 
the  order  of  judgment  of  some  court  of  record. 

Effect  on  existing  legislation.  This  section  of  the  constitution  had 
the  effect  of  abrogating  all  existing  statutes  in  conflict  with  it.  Thus,  that 
portion  of  the  special  charter  of  the  city  of  Chicago  which  authorized  the 
city  collector  to  sell  real  estate  for  the  non-payment  of  taxes  was  held  inappli- 
cable with  respect  to  taxes  levied  after  the  adoption  of  the  constitution,  for 
the  reason  that  the  city  collector  was  not  a  general  county  officer.^ 

Property  subject  to  sale.  While  there  is  no  constitutional  authority  for 
the  exemption  of  property  owned  by  counties  from  special  assessments  (see 
discussion  article  9,  section  3,  subheading,  "Special  assessments  and  special 
taxation,")  such  property  is  not  subject  to  sale  for  failure  to  pay  delinquent 
assessments.' 


»7  South  Park  Commissioners  v  Wood.  270  111.  263  (1915);  see,  also,  County 
of  McLean  v  City  of  Blooming-ton.  106  111.  209  (1883);  County  of  Adams  v  City 
of  Quincy,  130  111.  566  (1889);  City  of  Chicago  v  City  of  Chicago,  207  111.  37 
(1904):    Report   Attorney    General    1914,    p.    779. 

«»In   re   City  of  Mt.   Vernon,    147    111.    359    (1893). 

»»City   of   Chicago   v    Baptist   Theological    Union,    115    111.    245    (1885). 
1  Illinois   Central   Railroad  Co.   v  City  of  Decatur,    126    111.   92    (1888);    Illi- 
nois  Central   Railroad   Co.   v   City   of   Decatur,    147   U.    S.    190    (1893). 

a  Hills  v  City  of  Chicago,   60  111.  86    (1871);  Garrick  v  Chamberlain,   97  111. 
620    (1881). 

3  County  McLean  v  City  of  Bloomington,  106  111.  209    (188S);  Report  Attor- 
ney General  1910,  p.  583. 


•^12  Article  9,  Section  5 

Power  of  the  General  Assembly.  While  this  section  is  a  limitation 
upon  the  power  of  the  General  Assembly,  it  does  not  prevent  that  body  from 
making  such  regulations  as  may  be  deemed  necessary  regarding  the  terms 
of  court  at  which  applications  for  judgments  against  delinquent  real  es- 
tate shall  be  made;  and  the  General  Assembly  may  provide  that  applications 
for  judgments  against  real  estate  for  the  non-payment  of  special  assessments 
shall  be  made  at  a  term  of  court  other  than  that  at  which  applications  are 
made  for  judgments  against  real  estate  for  the  non-payment  of  general  taxes.^ 

The  General  Assembly  may  also  provide  that  when  real  estate  is  sold 
for  the  failure  to  pay  taxes  a  penalty,  prescribed  by  statute  may  be  added 
to  the  amount  due  for  unpaid  taxes."'  And,  while  no  real  estate  can  be  sold 
for  the  non-payment  of  taxes  except  upon  the  order  of  a  court  of  record, 
the  General  Assembly  may  provide  for  the  extension  of  a  fixed  statutory  pen- 
alty against  delinquent  real  estate  by  a  ministerial  officer.^ 

This  section  applies  only  to  sales  of  real  estate  for  the  non-payment  of 
taxes.  It  does  not  apply  to  a  sale  of  real  estate  under  an  execution  even 
though  the  execution  was  issued  on  a  judgment  obtained  in  an  action  in 
personam  for  failure  to  pay  taxes  on  the  land  sold  under  the  execution.  In 
such  a  case  a  sale  by  the  sheriff,  although  he  is  not,  under  the  revenue  laws, 
a  general  county  officer  "having  authority  to  receive  state  and  county 
taxes",  is  valid.'  An  owner  of  property,  however,  cannot  be  made  personally 
liable  for  special  assessments  or  special  taxation  for  local   improvements.^ 

According  to  an  opinion  of  the  Attorney  General  rendered  in  1917  it 
would  seem  that  this  section  of  the  constitution  prevents  the  elimination 
of  the  so-called  "tax  buyer".  In  the  view  of  that  officer  there  can  be  no 
valid  tax  sale  unless  an  opportunity  for  competitive  bidding  is  afforded.® 


Section  5.  The  right  of  redemption  from  all  sales  of  real  es- 
tate, for  the  non-payment  of  taxes  or  special  assessments  of  any 
character,  whatever,  shall  exist  in  favor  of  owners  and  persons  in- 
terested in  such  real  estate,  for  a  period  of  not  less  than  two  years 
from  such  sales  thereof.  And  the  General  Assembly  shall  provide, 
by  law,  for  reasonable  notice  to  be  given  to  the  owners  or  parties 
interested,  by  publication  or  otherwise,  of  the  fact  of  the  sale  of  the 
property  for  such  taxes  or  assessments,  and  when  the  time  of  re- 
demption shall  expire:  Provided,  that  occupants  shall  in  all  cases 
be  served  with  personal  notice  before  the  time  of  redemption  expires. 


Period  of  redemption.  In  all  cases  of  the  sale  of  real  estate  for  the 
non-payment  of  taxes  or  special  assessments  the  owners  or  persons  interested 
must  be  allowed  two  years  from  the  date  of  the  sale  in  which  to  redeem  the 
property.^"  But  this  is  true  only  in  case  the  proceeding  against  the  real  es- 
tate is  a  proceeding  in  rem — that  is,  an  application  for  judgment  against  the 
real  estate  itself  for  the  unpaid  taxes  levied  against  it,  and  not  a  proceeding 
against  the  owner  of  the  real  estate  personally  to  enforce  the  payment  of 
the  unpaid  taxes  levied  against  his  land.  And  so,  if  the  General  Assembly 
provides  for  an  action  in  personam  against  an  owner  of  real  estate  for  fail- 


*  Leindecker  v  People,  98  111.  21    (1881). 

=5  Chambers  v  People,  113  111.  509  (1885).  This  was  not  the  rule  under 
the  constitution  of  1848.     See  Scammon  v  City  of  Chicago,  44  111.  269   (1867). 

0  Chambers    v    People,    113    111.    509    (1885). 

^Douthett  V  Kettle,  3  04  111.  356  (1882);  Langrlois  v  People,  212  111.  75  (1904); 
see.  also,  Claris:  v  Zales!:i  253  111.  63  (1912);  Ziccarelli  v  Stuckhart,  277  111. 
26    (1917). 

^Craw   V   Village   of   Tolono.    96    111.    255    (1880). 

^  Veto    Messages    19  17.    p.    34. 
i«'Gage  V  Bailey,  100  111.  530    (1881);   Gage  v  Davis,    129   111,   236    (1889). 


Article  9,  Section  5  213 

ure  to  pay  the  taxes  on  his  real  estate,  that  same  real  estate  may  be  sold 
by  the  sheriff  under  an  execution  issued  on  the  judgment  in  personam 
against  the  owner,  and  the  owner  has  no  constitutional  right  to  a  two  year 
period  of  redemption  from  the  sale  on  execution," 

There  is,  however,  no  personal  liability  against  an  owner  of  property 
for  special  assessments  or  special  taxes  for  local  improvements  levied  against 
his  property.'^ 


Persons  entitled  to  redeem.  Obviously  the  owner  of  real  estate  sold 
for  the  non-payment  of  taxes  is  entitled  to  redeem  from  the  tax  sale.  But 
who  are  "parties  interested  in  such  real  estate"  that  may  redeem?  A  mere 
stranger  to  the  property  cannot  redeem.'^  But  a  mortgagee  of  land  sold 
for  unpaid  taxes  may  redeem,  and  may  even  file  a  bill  in  equity  to  set 
aside  a  defective  tax  deed."  And  this  is  true  even  though  there  is  apparently 
no  constitutional  requirement  that  mortsagees  of  real  estate  sold  for  non- 
payment of  taxes  shall  be  notified  of  the  date  when  the  period  of  redemp- 
tion expires.     (See  discussion  following  sub-heading.) 


Notice  of  expiration  of  period  of  redemption.  There  can  be  no  valid 
tax  deed  unless,  before  the  expiration  of  the  period  of  redemption,  personal 
notice  has  been  served  on  the  occupant  or  occupants  of  the  real  estate  sought 
to  be  conveyed  by  the  deed.^"'  And  a  tax  deed  based  on  a  notice  which 
incorrectly  states  the  date  on  which  the  period  of  redemption  expires  cannot 
be  sustained,  although  it  must  be  admitted  that  the  decisions  turn  on  the 
point  that  the  statute  regulating  the  giving  of  such  notices  requires  that  the 
date  of  expiration  of  the  redemption  period  be  correctly  set  forth.'** 

The  constitution  contemplates  that  the  notice  shall  be  served  on  the 
owners,  occupants  or  parties  interested  at  the  time  of  the  service  of  the 
notice  and  not  on  those  who  were  owners,  occupants  or  parties  interested  at 
the  time  of  the  sale  for  unpaid  taxes.'"  But,  while  the  court  has  not  ex- 
pressly passed  on  the  point,  it  seems  that  the  General  Assembly  has  full 
discretion  to  determine  who  shall  be  regarded  as  "parties  interested"  re- 
quiring notice,  and  that  the  General  Assembly  may  provide  that  only  own- 
ers and  occupants  shall  be  notified.  Thus,  it  has  been  held  that  a  mortgagee 
of  land  sold  for  unpaid  taxes  is  not,  under  present  statutes,  entitled  to  no- 
tice of  the  date  of  the  expiration  of  the  redemption  period.'^ 

The  service  on  owners  and  occupants  of  reasonable  notice  as  to  when 
the  time  for  redemption  expires  is  indispensable  under  the  constitution.  But, 
except  as  to  occupants,  who  must  be  served  with  personal  notice,  the  Gen- 
eral Assembly  is  unrestricted  as  to  the  form  of  notice  or  the  manner  of  the 
service  thereof.  As  to  those  who  are  not  occupants  the  General  Assembly 
may  provide  for  personal  notice,  or  notice  by  publication,  or  any  other  form 
of  reasonable  notice.'^ 

The  question  as  to  the  sufficiency  of  the  notice  required  by  the  consti- 
tution usually  arises  in  connection  with  suits  to  set  aside  tax  deeds.  And, 
since  the  statutes  with  reference  to  notice  generally  contain  conditions 
in  addition  to  those  required  by  the  constitution,  the  va.lidity  of  a  tax  deed 

iiDouthett  v  Kettle,  104  111.  356  (1882);  Langlois  v  People  212  111.  75  (1904); 
see,  also,  Clark  v  Zaleski,  253  111.  63  (1912);  Ziccarelli  v  Stuckhart,  277  111. 
26    (1917). 

12  Craw  V  Village  of  Tolono,  96   111.   255    (1880). 

"Houston    V    Buer.    117    111.    324    (1886). 

11  Miller  v  Cook,  135  111.  190  (1890);  Burton  v  Perry,  146  111.  71  (1893);  Glos 
V  Evanston  Building  and  Loan  Ass'n.,   186   111.   586    (1900). 

15  Palmer  v  Riddle,   180  111.   461    (1899);  Frew  v  Taylor,   106   111.   159    (1883). 

16  Wilson  V  McKenna,  52  111.  43  (1869);  Wisner  v  Chamberlain,  117  111. 
568  (1886).  In  Gage  v  Davis,  129  111.  236  (1889)  it  was  held,  under  a  certain 
statute,  that,  if  the  last  day  of  the  period  of  redemption  falls  on  Sunday,  that 
day   must    bo   excluded    in    computing    the    two    years. 

I'Gonzalia    v    Bartelsman,    143    111.    634    (1892). 

1^  Smyth  V  Neff,  123  111.  310  (1888);  Glos  v  Evanston  Bi  ilding  and  Loan 
Ass'n.,    186   111.   586    (1900). 

"Garrick  v  Chamberlin,  97  111.  620   (1881);  Frew  v  Taylor,  106  111.  159   (1883). 


214  Article  9,  Section  6 

most  frequently  turns  upon  the  construction  of  the  statutes.  The  rule  is 
well  settled  that  a  tax  deed  will  be  set  aside  unless  the  statute  under  which 
it  was  obtained  has  been  complied  with  strictly.  "A  tax  title  is  stricti  juris. 
It  is  a  purely  technical,  as  contradistinguished  from  a  meritorious  title,  and 
depends  for  its  validity  upon  a  strict  compliance  with  the  statute,  and  . 
a  court  of  chancery  will  not  aid  a  purchaser  at  a  tax  sale."^" 

However,  the  person  seeking  to  set  aside  a  tax  deed  may  be  required  to 
reimburse  the  holder  thereof  for  all  legal  taxes  paid  by  the  latter.^ 


Section  6.  The  General  Assembly  shall  have  no  power  to  re- 
lease or  discharge  any  county,  city,  township,  town  or  district,  what- 
ever, or  the  inhabitants  thereof,  or  the  property  therein,  from  their 
or  its  proportionate  share  of  taxes  to  be  levied  for  State  purposes, 
nor  shall  commutation  for  such  taxes  be  authorized  in  any  form 
whatsoever. 


Release  and  discharge  from  state  taxes.  Prior  to  the  adoption  of 
the  constitution  of  1870  the  General  Assembly  had,  in  some  instances, 
passed  acts  releasing  and  discharging  the  persons  and  property  in  certain 
counties  or  municipalities  from  state  taxes.  For  example,  in  1861  the 
General  Assembly  passed  an  act  providing  that  all  property  in  the  city  of 
Shawneetown  should  be  exempt  from  state  taxes  for  a  period  of  twenty 
years,  and  authorized  the  city  council  of  that  city  to  levy,  during  that  period, 
taxes  equal  to  the  amount  of  the  state  taxes,  the  proceeds  to  be  used  in 
constructing  embankments  to  protect  the  city  against  overflow.  When  the 
convention  of  1869-70  assembled,  the  Supreme  Court  had  not  yet  expressly 
passed  on  the  question  of  the  validity  of  such  legislation.  It  is  true  that  in 
1868  the  court  had  sustained  an  act  which  directed  that,  for  a  period  of 
five  years,  all  state  taxes  in  a  certain  part  of  St.  Clair  county  should,  after 
the  collection  thereof  as  state  taxes  but  before  the  same  were  paid  into 
the  state  treasury,  be  turned  over  to  the  treasurer  of  a  certain  corporation, 
and  used  to  defray  the  cost  of  constructing  levees  and  embankments  for  the 
protection  of  the  lands  in  that  part  of  St.  Clair  county  so  released  from  state 
taxes,  in  the  event  of  the  overflow  of  the  Mississippi  river.^-  But  the 
decision  was  based  on  the  express  ground  that  there  was  no  release  from 
state  taxes.  The  court  took  the  view  that  the  effect  of  the  act  was  merely 
to  divert  state  taxes  after  the  collection  thereof,  and  before  the  same  were 
paid  into  the  state  treasury,  and  not  to  release  any  persons  or  property 
from  the  payment  of  state  taxes.  (See  discussion  article  9,  section  7).  And 
in  1872,  shortly  after  the  adoption  of  the  present  constitution,  the  act  of 
1861  in  aid  of  the  city  of  Shawneetown,  was  held  void,  as  being  in  conflict 
with  the  constitution  of  1848.-^  But  the  provision  of  the  present  constitu- 
tion forbidding  the  release  and  discharge  from  state  taxes  was  adopted 
for  the  express  purpose  of  forbidding  such  legislation.     (Debates,  p.  1196-8). 

Irrespective,  however,  of  the  validity,  under  the  constitution  of  1848, 
of  legislation  which  sought  to  release  state  taxes,  the  effect  of  this  provision 
of  the  present  constitution  was  to  nullify  all  legislation  of  that  character.^* 


20  Miller  v  Cook.   135  111.  190    (1890);   see,  also,   People  v  Banks,    272   111.   502 
(1916);   Gage  v  Reid,    118   111.   35    (1886). 

21  Miller  v  Cook,  135  111.  190    (1890);  Kuhn  v  Glos,   257  111.   289    (1913).     See 
Reed   v    Tyler,    56    111.    288    (1870). 

"3  People  V  Miner,  46  111.  384  (1868). 
"3  People  v  Barger,  62  111.  452  (1872). 
2*  People  V  Lippincott.  65  111.  548  (1872);  Ramsey  v  Hoeger,  76  111.  432   (1875). 


Article  9,  Section  6  215 

In  Board  of  Education  v  Haworth,^'  the  facts  were  as  follows:  The 
general  school  law  provided  for  the  levy  of  a  state  tax  for  school  purposes, 
to  be  known  as  the  state  school  fund.  After  making  certain  deductions,  the 
law  provided  for  the  distribution  of  the  state  taxes  so  collected,  to  the 
several  counties  of  the  state,  on  the  basis  of  the  number  of  persons  under 
the  age  of  twenty-one  years  in  each  county,  and  for  the  distribution  of  the 
share  of  each  county  to  the  several  townships  in  that  county  on  the  same 
basis.  In  1915  the  General  Assembly  passed  a  law  providing  for  the  pay- 
ment of  the  tuition  of  high  school  pupils  residing  in  districts  having  no 
high  schools.  The  act  of  1915  directed  the  county  superintendent  of 
schools  of  each  county,  before  distributing  that  county's  share  of 
the  state  school  fund  among  the  townships  therein,  to  deduct  from 
the  total  amount  received  from  the  state  school  fund,  an  amount  sufficient 
to  pay  the  cost  of  the  tuition  of  all  pupils  of  that  county  residing  in  school 
districts  having  no  high  school,  but  attending  a  high  school  in  some  other 
school  district.  In  holding  void  the  act  of  1915,  the  court  said:  "The  effect  of 
the  act  is  to  exempt  owners  of  property  in  districts  not  providing  four 
years  of  recognized  high  school  work  from  paying  taxes  proportionate  to 
the  value  of  their  taxable  property  as  compared  with  the  taxable  property 
of  other  districts,  to  the  extent  that  the  state  tax  is  appropriated  to  a  local 
and  corporate  purpose.  The  result  is  to  release  the  districts  from  the  pay- 
ment of  taxes  for  such  purpose,  and  that  is  a  violation  of  section  6  of  article 
9  of  the  constitution,  which  provides  that  the  General  Assembly  shall  have 
no  power  to  release  or  discharge  any  county,  city,  township,  town  or  dis- 
trict whatever,  or  the  inhabitants  thereof  or  the  property  therein,  of  their 
or  its  proportionate  share  of  taxes  to  be  levied  for  state  purposes,  nor  shall 
commutation  for  such  taxes  be  authorized  in  any  form  whatsoever.  The 
state-wide  school  tax  is  a  tax  for  a  state  purpose,  to  be  apportioned  to  and 
distributed  by  the  Auditor  among  the  counties  and  by  the  county  superin- 
tendent of  schools  among  the  districts  in  the  county,  and  by  the  act  in 
question  the  school  district  maintaining  no  high  school  is  released  from 
taxation  for  the  local  and  corporate  purpose  of  paying  tuition  of  its  pupils 
residing  in  the  district  and  attending  schools  outside  of  the  district." 


Commutation  of  state  taxes.  By  commutation  of  state  taxes  is  meant 
the  duty,  right  or  privilege  of  paying  a  specific  sum  of  money  or  something 
else  of  value  in  lieu  of  state  taxes  levied  and  collected  in  the  usual  mode. 
It  is  not  an  exemption  from  all  taxes  but  is  an  exemption  from  paying  taxes 
in  accordance  with  the  rule  under  which  persons  and  corporations  generally 
pay  taxes.  And,  since  the  general  property  tax  is  established  in  this  state, 
it  is  an  exemption  from  the  payment  of  taxes  in  proportion  to  the  value  of 
property. 

Under  the  constitution  of  1818  it  was  held  that  the  General  Assembly 
had  full  and  complete  power  to  commute  state  and  local  taxes,  and  the  act 
exempting  the  state  bank  of  Illinois  from  all  taxation,  state  and  local,  in 
consideration  of  the  payment  annually  into  the  state  treasury  of  a  sum  of 
money  equal  to  one-half  of  one  per  cent  of  the  bank's  capital  stock  was  sus- 
tained.^ And  the  General  Assembly  had  the  same  power  under  the  con- 
stitution of  1848.  In  Illinois  Central  Railroad  Company  v  McLean 
County,^'  the  provision  of  the  special  charter  of  the  Illinois  Central  Rail- 
road Company  exempting  the  corporation  from  the  payment  of  all  taxes, 
state  and  local,  in  consideration  of  the  payment  by  it  into  the  state  treasury 
of  a  certain  percentage  of  its  gross  receipts,  was  held  valid.  The  effect  of 
these  decisions  was  tc  give  the  General  Assembly  the  power  to  commute 
local  taxes  in  consideration  of  the  payment  of  money  into  the  state  treasury, 


-5  274   111.   538    (1916).      See  People  v  C.  &  N.   W.   Ry.   Co.   286    111.   384    (1919); 
Veto  Messag-es   1919.    p.   39. 

-'«  State    Bank    of    Illinois    v    People.     5    111.    303     (1843). 
27  17    111.    291    (1855), 


216  Article  9,  Section  6 

without  providing  that  the  municipalities  which  lost  their  right  to  tax 
the  property  of  these  corporations  should  receive  any  thing  to  compensate 
them  for  their  loss. 

Tt  was  also  held  under  the  constitution  of  1848  that  the  General  As- 
sembly could  commute  local  taxes  without  at  the  same  time  commutina: 
the  state  taxes  of  the  same  persons  or  property.  In  Hunsaker  v  Wright,=^* 
an  act  of  the  General  Assembly  was  sustained  which  provided  that  the  in- 
habitants of  the  city  of  Cairo  should  be  exempt  from  performing  labor  on 
the  roads  beyond  the  city  limits,  or  taxes  to  procure  labor  for  that  purpose, 
and  that  the  property  in  the  city  should  be  released  from  taxes  for  county 
purposes,  if  the  city  should  care  for  its  own  paupers  and  pay  the  expenses 
of  the  circuit  court  of  Alexander  county  in  connection  with  the  trial  of 
criminal  cases  in  which  residents  or  citizens  of  the  city  of  Cairo  were  de- 
fendants. And  the  court,  in  that  case,  made  it  clear  that,  while  the  Genersil 
Assembly  was  the  sole  judge  as  to  whether  or  not  the  value  of  the  burden 
imposed  in  lieu  of  taxes  was  equivalent  to  the  amount  of  taxes  released, 
the  legislative  authority  could  not  exempt  persons  and  property  in  certain 
communities  from  the  burden  of  paying  local  taxes  without  exacting  some- 
thing in  the  nature  of  an  equivalent  burden. 

The  purpose  of  this  section  of  the  constitution  was  to  prohibit  the  com- 
mutation of  state  taxes.  It  does  not  prohibit  the  commutation  of  municipal 
taxes.^  However,  the  Supreme  Court  in  a  comparatively  recent  case,  in- 
timated that  sections  9  and  10  of  this  article  have  the  effect  of  denying  to 
the  General  Assembly  the  power  to  commute  any  municipal  taxes,  except 
county  taxes;  or,  at  least,  of  preventing  the  commutation  of  municipal  taxes 
without  providing  that  the  municipalities  thus  deprived  of  their  right  to 
tax  certain  property,  shall  receive  something  in  return  for  the  loss  of 
property  taxes.^" 

And  while  this  section  seems  to  forbid  absolutely  the  commutation  of 
state  taxes,  the  court,  in  its  opinion  in  Raymond  v  Hartford  Fire  Insurance 
Company.^*^  said  that  the  property  of  any  person  or  corporation  included 
within  the  last  clause  of  section  1  of  this  article,  may  be  taxed  otherwise 
than  in  proportion  to  value,  the  rule  by  which  other  property  generally  is 
taxed.  In  that  case  it  was  said  that  an  act  of  the  General  Assembly,  which 
provided  that  foreign  fire  insurance  companies  should  pay  two  per  cent  of 
their  gross  premiums  received  for  business  done  in  this  state  in  lieu  of  all 
taxes  on  personal  property,  both  state  and  local,  was  not  in  conflict  with 
this  section.  However,  the  statements  of  the  court  in  this  regard  were  not 
necessary  to  the  decision  in  that  case  for  the  act  of  the  General  Assembly 
was  held  to  be  in  violation  of  sections  9  and  10  of  this  article.  (See  dis- 
cussion article  9,  section  9,  sub-heading,  "Commutation  of  municipal  taxes"). 
This  section  does  not  abrogate  the  provisions  of  the  special  charter  of 
the  Illinois  Central  Railroad  Company  relating  to  commutation  of  taxes 
with  respect  to  the  property  used  in  connection  with  the  charter  lines  of  that 
company.  The  separate  section  of  the  present  constitution  relating  to  the 
Illinois  Central  Railroad  Company  expressly  re-affirms  those  provisions. 
(See  discussion  article  9,  section  3,  subheading  "Commutation — Illinois 
Central  Railroad  Company"). 

The  Attorney  General  has  held  that  this  section  prohibits  any  state 
officer  in  charge  of  the  collection  of  state  taxes  from  releasing  any  person 
or  corporation  of  any  portion  of  the  total  amount  of  state  taxes  due  on  his 
or  its  property.'^ 


28  30    111.    146    (1863);    see,    also.    Board    of    Supervisors    v    Campbell,    42    111. 
490    (1867).      See  O'Kane  v  Treat   25   111.   557    (1861);   Town  of  Pleasant  v  Kost, 
29   111.   490    (1863);  Cooper  v  Ash,   76  111.   11    (1875);  Hayward  v   People,   145   111.* 
55  (1893). 

^Wetherell  v  Devine,   116  111.  631    (1886);   Raymond  v  Hartford  Fire  Insur- 
ance  Co.    196    111.    329    (1902). 

30  Raymond    v    Hartford    Fire    Insurance    Co.    196    111.    329    (1902). 

»il96   111.   329    (1902). 

3«  Report  Attorney  General   1917-18,   p.   1081. 


Article  9,  Sections  7,  8  217 

Section  7.     All  taxes  levied  for  State  purposes  shall  be  paid 
into  the  State  treasury. 


Prior  to  1870,  the  General  Assembly  had  sometimes  passed  laws  releas- 
ing and  discharging  the  persons  and  property  in  certain  counties  or  mu- 
nicipalities from  state  taxes.  Section  6  of  this  article  was  adopted  for  the 
purpose  of  preventing  such  legislation.  However,  in  1868  .the  Supreme 
Court  had  held  that  an  act,  which  provided  for  the  return  to  a  certain 
community  of  the  state  taxes  collected  in  that  community,  before  the  same 
were  paid  into  the  state  treasury,  was  not  a  release  from  state  taxes,  but 
merely  a  diversion  of  such  taxes  before  the  payment  thereof  into  the  state 
treasury .^^  (See  discussion  article  9,  section  6,  sub-heading  "Release  and 
discharge  from  state  taxes").  This  section  of  the  constitution,  no  doubt, 
was  adopted  for  the  purpose  of  nullifying  that  decision  and  to  prevent  the 
evasion  of  the  provisions  of  section  6  of  this  article.     (Debates,  pp.  1196-8.) 

In  1872  the  Supreme  Court  held  that  an  act  of  the  General  Assembly, 
passed  in  1869,  w"hich  directed  that  the  state  taxes  collected  in  certain  town- 
ships in  Randolph  county  should,  before  the  payment  thereof  into  the  state 
treasury,  be  turned  over  to  a  certain  navigation  company,  to  be  used  for 
the  purpose  of  making  improvements  on  the  Mississippi  river,  was  in 
direct  conflict  with  this  section  of  the  constitution  and,  therefore,  void.^* 


Section  8.  County  authorities  shall  never  assess  taxes,  the  ag- 
gregate of  which  shall  exceed  seventy-five  cents  per  one  hundred 
dollars'  valuation,  except  for  the  payment  of  indebtedness  existing 
at  the  adoption  of  this  Constitution,  unless  authorized  by  a  vote  of 
the  people  of  the  county. 


In  general.  Tins  section  of  the  constitution  is  not  a  limitation  on  the 
power  of  counties  to  incur  debts.  The  only  constitutional  limitation  on 
the  power  of  counties  to  become  indebted  is  found  in  section  12  of  this 
article.""'  (See  discussion  article  9,  section  12).  Nor  does  it  impose  any 
limitation  on  the  power  of  the  General  Assembly  to  provide  for  the  assess- 
ment of  property,  or  to  determine  the  manner  of  ascertaining  the  valuation 
of  property  against  which  county  taxes  may  be  levied.'^'' 

And  this  section  does  not  make  it  incumbent  upon  the  county  board, 
in  levying  a  tax  for  county  purposes,  to  specify  in  the  tax  levy  resolution 
the  purposes  for  which  the  proceeds  of  the  tax  are  to  be  used." 


Power  of  counties  to  levy  taxes.  Without  a  favorable  vote  of  the 
people,  counties  cannot  levy  taxes  in  excess  of  seventy-five  cents  on  the 
one  hundred  dollars  valuation,  except  for  an  indebtedness  existing  at  the 
time  of  the  adoption  of  the  constitution.  But  this  does  not  mean  that 
counties  have  unrestricted  power  to  levy  taxes  equal  to  seventy-five  cents 
on  each  one  hundred  dollars  valuation.  County  taxes  can  be  levied  only 
under  legislative  authorization.  While  the  General  Assembly  cannot,  except 
for  pre-existing  indebtedness,  authorize  the  levy  of  county  taxes  in  excess 
of  the  limitation  of  seventy-five  cents,  without  a  vote  of  the  people,  that 


3' People  V  Miner,   46   111.   384    (1868). 

3' People    V    Lippincott.    65    Til.    548     (1872). 

s^Cole.s   County   v    Goehring-.    209    111.    142    (1904). 

^''C.    B.    &   Q.    R.    R.    Co.    V   People.    213    111.    458    (1905) 

37  People    V    W.    C.    R.    R.    Co.,    219    111.    94    (1905). 


218  Article  9,  Section  8 

body  may,  if  it  sees  fit,  provide  that  the  county  boards  shall  have  no  power 
to  levy  taxes  in  excess  of  a  certain  amount  which  is  less  than  seventy-five 
cents  on  the  one  hundred  dollars  valuation.^'*  However,  a  levy  of  county 
taxes  in  excess  of  the  amount  permitted  by  the  constitution  or  statute 
does  not  render  the  whole  levy  void;  only  the  excess  is  illegal.^'' 

What  are  county  taxes  within  the  meaning  of  the  constitution?  The 
mother's  pension  fund  tax  is  a  county  tax  and  must  be  included  within 
the  limitation  of  seventy-five  cents  on  the  one  hundred  dollars  valuation; 
county  boartffs  cannot  impose  the  mother's  pension  fund  tax  in  addition 
to  a  tax  levy  of  seventy-five  cents  on.  the  one  hundred  dollars  valuation 
without  a  vote  of  the  people/''  It  is  a  county  tax  because  under  the  law 
the  mother's  pension  fund  is  administered  by  the  county.  Town  taxes  do 
not  become  county  taxes  merely  because  the  amount  of  town  taxes  required 
to  be  levied  is  certified  by  the  town  authorities  to  the  county  board  and 
ordered  by  that  body  to  be  extended  by  the  county  clerk  on  the  tax  books.*^ 
But  road  and  bridge  taxes  in  counties  not  under  township  organization  and 
not  divided  into  road  districts,  are  county  taxes,  although  in  counties  under 
township  organization  such  taxes  are  town  taxes  and  are  not  included  in 
the  limitation  of  seventy-five  cents  on  the  one  hundred  dollars  valuation; 

In  ordering  the  submission  to  the  voters  of  the  question  of  levying 
taxes  in  excess  of  the  limitation  of  seventy-five  cents,  the  county  board 
should  state  either  the  number  of  years  that  taxes  are  proposed  to  be 
levied  at  a  certain  rate  in  excess  of  seventy-five  cents  on  the  one  hundred 
dollars  valuation,  or  the  amount  of  money  desired  to  be  raised  by  taxes 
in  excess  of  the  usual  rate.  "It  is  indispensable  to  a  good  and  valid  order 
of  the  board  that  it  should  disclose  to  the  voters  either  the  length  of  time 
the  levies  at  the  excessive  rate  shall  continue,  or  the  amount  which  is  to 
be  raised  by  such  excess  in  the  rate  of  taxation. "^^^ 

In  1915  the  General  Assembly  passed  an  act  authorizing  county  boards 
to  establish  county  tuberculosis  sanitariums  in  counties  where  the  proposi- 
tion of  establishing  such  sanitariums  was  voted  on  favorably  by  the 
people.  The  act  also  provided  for  a  tax  levy  to  obtain  funds  for  the  oper- 
ation and  maintenance  of  such  sanitariums.  In  People  v  Wabash  Railway 
Company,^*  the  question  was  presented  whether  or  not  a  favorable  vote  on 
the  question  of  adopting  the  act  of  1915  was  equivalent  to  a  favorable  vote 
on  the  question  of  levying  the  taxes  authorized  by  the  act  of  1915,  in  addi- 
tion to  seventy-five  cents  on  the  one  hundred  dollars  valuation.  The  court 
held  that  the  vote  on  the  question  of  establishing  a  county  tuberculosis 
sanitarium  could  not  be  regarded  as  a  vote  on  the  question  of  levying  taxes 
in  excess  of  the  limitation  of  seventy-five  cents  and  that,  therefore,  the 
tax  authorized  by  the  act  of  1915  must  be  included  in  the  limitation  of 
seventy-five  cents,  unless  the  people  later  voted  favorably  on  the  question 
of  levying  the  sanitarium  tax  in  addition  to  the  usual  rate. 

Women  cannot  -vote  on  the  question  of  levying  county  taxes  in  excess 
of  seventy-five  cents  on  the  one  hundred  dollars  valuation.*^  (See  discus- 
sion article  7,  section  1,  subheading,  "Woman  suffrage"). 


Indebtedness  existing  at  the  time  of  the  adoption  of  the  constitution. 
Except  for  indebtedness  existing  at  the  time  of  the  adoption  of  the  pres- 
ent constitution  counties  cannot  levy  taxes  in  excess  of  the  limitation  of 
seventy-five  cents,  unless  authorized  by  a  vote  of  the  people.  An  obliga- 
tion which  was  authorized  and  created  before  the  adoption  of  the  consti- 
tution  of   1870   is   a  pre-existing   indebtedness,   even   though   the   bonds   or 


3»  Booth   V   Opel,    244    111.    317    (1910). 

3=»Mix   V    People,    72    111.    241    (1874). 

*»  People  v   C.   V.   &  C.   Ry.   Co.,    266    111.    557    (1915). 

"W.    St.   L.   &   P.    Ry.   Co.   V   McCleave.    108    111.    368    (1884). 

43  Wright  v  W.   St.    L  &  P.   Ry.   Co.,    120   111.   541    (1887). 

*3P.   &  P.   U.   Ry.   Co.   V   People,    198    111.    318    (1902). 

**286   111.   15    (1918). 

"5  Report   Attorney    General    1915,    p.    310. 


Article  9,  Section  9  219 

other  evidences  of  the  obligation  were  not  issued  until  after  its  adoption.*^ 
With  reference  to  pre-existing  indebtedness  the  power  to  levy  taxes  in  ex- 
cess of  the  limitation  of  seventy-five  cents  continues  until  the  indebtedness  is 
extinguished.  The  mere  fact  that,  in  the  years  immediately  after  the 
adoption  of  the  constitution,  taxes  in  excess  of  the  limitation  of  seventy- 
five  cents  were  levied  in  an  amount  sufficient  to  satisfy  the  pre-existing 
indebtedness  of  a  county  but  were,  after  their  collection,  diverted  to  other 
purposes,  does  not  prevent  the  county  board  from  again  levying  taxes 
in  excess  of  seventy-five  cents  on  the  one  hundred  dollars  valuation  for  the 
purpose  of  paying  such  indebtedness.*^ 


Section  9.  The  General  Assembly  may  vest  the  corporate  au- 
thorities of  cities,  towns,  and  villages,  v/ith  power  to  make  local  im- 
provements by  special  assessment  or  by  special  taxation  of  contigu- 
ous property,  or  otherwise.  For  all  other  corporate  purposes,  all 
municipal  corporations  may  be  vested  with  authority  to  assess  and 
collect  taxes ;  but  such  taxes  shall  be  uniform,  in  respect  to  persons 
and  property,  within  the  jurisdiction  of  the  body  imposing  the  same. 


Municipalities  that  may  be  authorized  to  levy  taxes.  Under  the  con- 
stitution of  1818  the  General  Assembly  had  the  power  arbitrarily  to  create 
municipal  corporations  of  any  kind  or  character  and  to  invest  such  munici- 
pal corporations  with  the  power  to  levy  taxes.*^  Section  5  of  article  9  of 
the  constitution  of  1848  provided  that  "the  corporate  authorities  of  counties, 
townships,  school  districts,  cities,  towns  and  villages  may  be  vested  with 
power  to  assess  and  collect  taxes  for  corporate  purposes,  such  taxes  to  be 
uniform  in  respect  to  persons  and  property  within  the  jurisdiction  of  the 
body  imposing  the  same,"  and  it  was  held  that,  under  that  section,  the 
General  Assembly  could  not  confer  the  power  to  levy  municipal  taxes 
on  any  corporate  authorities  other  than  those  of  counties,  townships,  school 
districts,  cities,  towns  and  villages.  The  enumeration  of  certain  municipal 
corporations  was  held  to  be  an  exclusion  of  all  municipal  corporations 
not  mentioned  in  that  section."^  But  this  section  of  the  present  constitution 
expressly  provides  that  (except  as  to  local  improvements)  "all  municipal 
corporations  may  be  vested  with  authority  to  assess  and  collect  taxes." 
There  is,  in  this  section,  no  enumeration  of  municipal  corporations  that 
may  be  given  the  power  to  impose  general  taxes  for  corporate  purposes. 
The  rule  established  under  the  constitution  of  1848,  therefore,  has  no  appli- 
cation at  this  time,  and  the  General  Assembly,  in  so  far  as  the  creation  of 
different   types   or   classes   of   municipal   corporations   with    power   to   levy 


""Chiniquy    v   People,    78    111.    570    (1875). 

*' County   of   Pope   v   Sloan.    92    111.    177    (1879). 

*'■' Shaw  V  Dennis,  10  111.  405  (1849);  see  discussion  of  this  case  in  Wilson 
v    Board    of    Trustees,    133    111.    443    (1890),    pp.    459-65. 

■^^  People  V  Salomon,  51  111.  37  (1869).  This  case  is  interesting  because,  while 
the  court  announced  the  rule  that  only  the  corporate  authorities  of  the  munici- 
palities enumer  ited  in  section  5  of  article  9  of  the  constitution  of  1848  could 
be  given  the  power  to  levy  taxes  for  corporate  purposes,  it  nevertheless  sus- 
tained an  act  establishing  three  towns  as  a  park  district  and  authorizing  a 
board  of  park  commissioners  appointed  by  the  Governor  to  levy  taxes  for  park 
purposes  on  the  property  in  the  park  district.  The  court  took  the  view  that 
this  was  not  an  attempt  to  confer  a  taxing  power  on  a  park  district,  a  munici- 
pality not  mentioned  in  section  5  of  article  9,  but  that  the  act  merely  created 
the  board  of  park  commissioners  the  corporate  authorities  for  the  park  pur- 
poses of  the  towns  formed  into  a  park  district,  and  that,  since  towns  were 
enumerated  in  section  5  of  article  9.  the  constitutional  provision  was  not  vio- 
lated. See  discussion  of  this  case  in  Wilson  v  Board  of  Trustees.  133  111.  443 
(1890)  pp.  459-65;  see,  also,  Madison  County  v  People,  58  111.  456  (1871);  People 
v  McAdams,  82  111.  356   (1876). 


320  Article  9,  Section  9 

and  collect  general  taxes  for  corporate  purposes  is  concerned,  is  completely 
unrestricted.  Thus,  the  General  Assembly  may  authorize  the  establish- 
ment of  sanitary  districts  with  the  power  to  levy  general  taxes  for  corpo- 
rate purposes.^" 


Corporate  purposes.  This  section  of  the  constitution  provides  that 
municipal  corporations  may  be  vested  with  the  power  to  levy  taxes  for  cor- 
porate purposes.  The  constitutional .  provision  is  not  self-executing,  and 
the  power  of  municipalities  to  levy  taxes  for  corporate  purposes  depends 
upon  legislation.  Municipal  corporations  can  not  levy  taxes  unless  author- 
ized to  do  so  by  an  act  of  the  General  Assembly.^^  This  section  of  the 
constitution,  however,  is  a  limitation  on  the  power  of  the  General  Assembly. 
The  legislative  authority  cannot  authorize  the  levy  of  local  taxes 
except  for  corporate  purposes.  The  question  then  arises  as  to  what  is 
a  corporate  purpose.  "A  tax  for  a  corporate  purpose  is  one  to  be  expended 
in  a  manner  which  will  promote  the  general  prosperity  and  welfare  of 
the  municipality  which  levies  it.""  "Those  purposes  have  been  defined 
to  be  such  purposes  as  are  germane  to  the  objects  of  the  welfare  of  the 
municipality,  or,  at  least,  have  a  legitimate  connection  with  those  objects 
and  a  manifest  relation  thereto."  "^ 

Under  the  constitution  of  1848  it  was  held  that  taxes  levied  by  counties 
and  townships  for  the  payment  of  bounties  to  volunteer  soldiers  in  the 
Civil  V/ar  were  taxes  for  corporate  purposes.*  And,  under  that  constitution 
taxes  levied  by  counties,  townships,  cities,  towns  and  villages  to  pay  bonds 
issued  by  such  municipalities  in  aid  of  railroads  were  held  to  be  taxes  for 
corporate  purposes,"^  although  taxes  levied  by  a  school  district  for  a  similar 
purpose  were  not  for  corporate  purposes.'*  But  taxes  levied  by  municipal 
corporations  to  obtain  money  for  donations  to  private  manufacturing 
corporations,  or  for  the  purchase  of  the  capital  stock  of  such  private 
corporations,  were  held  to  be  not  for  corporate  purposes.^'  The  separate 
section  of  the  present  constitution  relating  to  municipal  subscriptions  to 
railroads  or  private  corporations  prohibits  donations  to  or  subscriptions  to 
the  capital  stock  of  railroad  and  private  corporations  by  municipal  cor- 
porations. 

In  Livingston  County  v  Welder'*  it  was  held  that  the  constitution  of 
1848  forbade  the  levy  of  taxes  by  a  county  to  obtain  funds  to  aid  the  con- 
struction of  the  state  reform  school  even  though  the  purpose  of  the  dona- 
tion of  funds  was  to  secure  the  location  of  the  institution  in  that  county. 
Two  years  later,  however,  the  court  held  that  a  tax  levied  by  the  city  of 
Carbondale  to  pay  bonds  issued  in  aid  of  the  construction  of  a  state  normal 
school  to  be  located  in  that  city  was  for  a  corporate  purpose  and,  therefore, 
not  forbidden  by  the  constitution  of  1848.'®     The  court  drew  a  distinction 


59  Wilson  V   Board  of  Trustees,    133   111.   443    (1890). 

51  Condon  v  Village  of  Forest  Park,  278  111.  218  (1917);  Bissell  v  City  of 
Kankakee,  64  111.  249    (1872). 

5^  Taylor    v    Thompson,    42    111.    9     (1866). 

5»  Stone    v   City    of   Chicago,    207    111.    492    (1904). 

5^*  Taylor  v  Thompson,  42  111.  9  (1866);  State  of  Illinois  v  Sullivan,  43  111. 
412    (1867). 

55  Johnson  v  County  of  Stark.  24  111.  75  (1860):  C.  D.  &  V.  R.  'R.  Co.  v 
Smith,    62    111.    268    (1871). 

50  People  v  Dupuyt,  71  111.  651  (1874);  People  v  Trustees  of  Schools,  78 
111.    136    (1875). 

57  Mather  v  City  of  Ottawa,  114  111.  659  (1885);  see,  also,  Bissell  v  City 
of  Kankakee.  64  111.  249  (1872);  English  v  People,  96  111.  566  (1880).  It  is 
interesting  to  note  that  while  all  of  these  cases  were  based  on  the  consti- 
tution of  1848,  the  decisions  were  rendered  after  the  adoption  of  the  present 
constitution  which  forbids  municipal  aid  to  private  corporations.  (See  sep- 
arate section  relating  to  municipal  subscriptions  to  railroads  or  private  cor- 
porations). 

5S64    111.    427    (1872). 

59  Burr   V   City   of    Carbondale,    76    111.    455    (1875). 


Article  9,  Section  9  221 

between  the  state  reform  school  case  and  the  state  normal  school  case 
on  the  ground  that,  In  the  former,  the  question  of  donating  funds  had  not 
been  submitted  to  the  voters,  while,  in  the  latter,  the  people  of  the  city 
of  Carbondale  had  voted  favorably  on  the  question  of  issuing  bonds  in 
aid  of  the  normal  schools. 

The  question  whether  or  not  a  certain  local  tax  is  a  tax  for  a  corporate 
purpose  under  the  constitution  of  1870  has  not  often  arisen.  It  has  been 
held  that  a  tax  levied  in  a  school  district  not  maintaining  a  high  school 
to  pay  the  tuition  of  pupils  residing  in  that  district  but  attending  a  high 
school  in  another  school  district,  is  a  tax  for  a  corporate  purpose,  which 
may  be  authorized  by  the  General  Assembly.*'*'  A  city  may  levy  a  tax  to 
defray  the  cost  of  holding  elections  in  the  city,  or  to  pay  judgments  ob- 
tained against  it  in  the  courts."^  A  statute  which  authorizes  the  collection 
of  municipal  taxes,  previously  held  invalid,  is  not  void  as  authorizing 
a  local  tax  for  other  than  a  corporate  purpose,  although  such  back  taxes, 
when  collected,  cannot  possibly  be  used  for  the  purposes  for  which  they 
were  originally  intended.  "Because  the  taxes  are  not  now  needed  for, 
and  will  not  be  applied  to,  the  particular  corporate  purpose  for  which  they 
were  required  at  the  time  they  were  attempted  to  be  levied  and  collected 
.  .  .  it  does  not  follow  that  when  collected  they  will  not  be  applied  to  some 
municipal  purpose.  They  would  belong  to  the  corporation,  and  would,  like 
any  other  surplus,  remain  in  the  treasury  subject  to  future  appropriations 
for  municipal  purposes,  and  thereby  lighten  future  taxation  and  thus 
operate  in  the  equalization  of  the  burden  of  taxation.""-  And  municipali- 
ties may  be  authorized  to  include  in  their  tax  levies  an  item  to  cover  the 
cost  of  collection  and  probable  losses  in  collection,  for  an  item  of  that 
character  constitutes  a  corporate  purpose.®'' 


Corporate  authorities.  This  section  of  the  constitution  expressly  pro- 
vides that  the  General  Assembly  may  vest  the  corporate  authorities  of 
cities,  towns  and  villages  with  the  power  to  make  local  improvements  by 
special  assessments  or  by  special  taxation  of  contiguous  property.  But 
v/ith  respect  to  general  taxes,  it  provides  that  "for  all  other  corporate 
purposes  all  municipal  corporations  may  be  vested  with  authority  to  assess 
and  collect  taxes."  In  providing  for  the  levy  of  general  taxes  by  municipal 
corporations  the  constitutional  provision  does  not  refer  to  corporate  author- 
ities. It  is  probable,  however,  that  the  framers  of  the  constitution  did  not 
intend  to  distinguish  between  special  assessments  and  special  taxation  on 
the  one  hand,  and  general  taxation  on  the  other,  with  respect  to  the  persons 
who  could  be  authorized  to  impose  them.  In  any  event  the  courts  have 
made  no  distinction  in  this  regard.  The  constitution  of  1848  (article  9.  sec- 
tion 5)  provided  that  "the  corporate  authorities  of  counties,  townships,  school 
districts,  cities,  towns  and  villages  may  be  vested  with  power  to  assess 
and  collect  taxes  for  corporate  purposes,  such  taxes  to  be  uniform  in  re- 
spect to  persons  and  property,  within  the  jurisdiction  of  the  body  imnosing 
the  same."  Under  this  provision  it  was  held  in  many  cases  that  only  the 
corporate  authorities  of  the  municipalities  therein  enumerated  could  be 
empowered  to  levy  general  taxes  for  corporate  purposes.®*  And  the  same 
general  rule  has  been  applied  in  all  cases  arising  under  the  constitution 
of  1870.  Only  the  corporate  authorities  of  a  municipal  corporation  may 
levy  taxes  for  corporate  purposes.®' 


'■■'•Cook    V     Board     of     Director.s,     2t^6     Til.     164     (1914). 

"iWetherell  v  Devine,  116  111.  631  (1886);  Stone  v  City  of  Chicago,  207 
111.     492     (1904). 

«2  Fairfield    v    People.    94    111.    244    (1879). 

"^Villaere  of  Hvde  Park  v  Ing-alls,  87  111.  11  (1877);  see.  also,  Rvan  v 
People     117    111.    486    (1886). 

«*  People  V  Mayor  of  City  of  Chicago,  51  111.  17  (1869);  Harward  v  St.  Clair 
Draipaee  Co.,    51    111.    130    (1869). 

«s  Cornell  v  People.  107  111.   372   (1883);  People  v  Block.   276  111.   286    (1916). 


222  Article  9,  Section  9 

Who  are  corporate  authorities?  "As  the  object  of  this  constitutional 
clause  was  to  prevent  the  legislature  from  granting  the  power  of  local 
taxation  to  persons  over  whom  the  population  to  be  taxed  could  exercise 
no  control,  it  is  evident  that,  by  the  phrase  'corporate  authorities,'  must 
be  understood  those  municipal  officers  who  are  either  directly  elected  by 
such  population,  or  appointed  in  some  mode  to  which  they  have  given  their 
assent."*'"'  Under  the  constitution  of  1848  it  was  held  that  the  General 
Assembly  could  not  create  a  drainage  district  and  vest  the  power  to  levy 
taxes  for  the  corporate  purposes  of  that  district  in  a  private  corporation 
designated  in  the  act  establishing  the  district."^  It  was  also  held  that  the 
General  Assembly  could  not  create  a  park  district  in  a  town  and  vest  the 
taxing  power  in  a  board  of  commissioners  appointed  by  the  General  As- 
sembly/^ Nor  could  it  arbitrarily  provide  that  five  persons  should  con- 
stitute a  body  corporate  to  conduct  a  primary  school  with  power  to  levy 
taxes  on  the  property  within  a  certain  district.'"*  However,  it  was  not 
necessary,  under  the  constitution  of  1848,  that  the  corporate  authorities 
of  a  municipal  corporation  should  be  directly  elected  by  the  people  of  that 
municipality.  The  General  Assembly  could  provide  for  the  appointment 
of  the  taxing  authorities  of  a  municipality  and,  if  the  people  of  the  munici- 
pality assented  to  the  m^ode  of  appointment  prescribed,  the  taxing  authori- 
ties designated  became  corporate  authorities  within  the  meaning  of  the 
constitution.  In  People  v  Salomon™  an  act  of  the  General  Assembly  pro- 
viding that  the  taxing  authorities  of  a  certain  park  district  composed  of 
three  towns  should  be  appointed  by  the  Governor  was  sustained  because 
the  people  of  the  park  district  had  voted  favorably  on  the  question  of 
adopting  the  act.  In  that  case  the  people  subject  to  taxation  consented 
to  the  appointment  by  the  Governor  of  the  taxing  authorities.  But  once 
the  mode  of  appointment  of  corporate  authorities  was  approved  by  the  peo- 
ple to  be  taxed,  it  was  not  within  the  power  of  the  General  Assembly,  at 
a  later  time,  to  change  the  method  of  appointment  without  the  consent 
of  the  people  interested. 

In  Cornell  v  People'^  the  facts  were  as  follows:  An  Act  of  the 
General  Assembly  provided  that  the  taxing  authorities  of  a  park  district 
composed  of  three  towns  should  be  appointed  by  the  judges  of  the  circuit 
court.  This  act  was  submitted  to  the  people  of  the  proposed  park  district 
and  adopted.  Later  the  General  Assembly  passed  an  act  providing  that  the 
taxing  authorities  of  the  park  district  should  be  appointed  by  the  Governor. 
The  later  act  was  not  submitted  to  the  people  subject  to  taxation,  and 
was  held  void  on  the  ground  that  it  provided  for  the  appointment  of 
taxing  authorities  in  a  manner  not  assented  to  by  the  people  of  the  park 
district.  "It  may  be  that  the  Governor  is  quite  as  competent  to  select 
honest  and  capable  commissioners  as  the  circuit  judge  of  Cook  County; 
but  that  does  not  affect  the  question.  Had  the  people  of  the  district  seen 
proper  to  reject  the  act  when  it  was  submitted  for  their  adoption  or  re- 
jection, the  act  could  not  have  been  imposed  upon  them.  They  saw  proper 
to  adopt  it  as  it  was,  with  the  plain  provision  that  the  corporate  authorities 
should  be  appointed  by  the  circuit  judge  of  Cook  County.  It  cannot  be 
said  they  would  have  given  their  assent  to  the  act  if  the  appointing  power 
had  been  left  in  the  hands  of  the  Governor.  They  may  have  had  the  most 
cogent  reasons  for  consenting  to  an  act  where  the  appointing  power  was 
left  in  the  hands  of  a  public  officer  residing  in  their  own  county,  occupying 
a  position  which  of  itself  would  place  him  above  any  and  all  political  in- 
fluences which  might  be   brought  to  bear  upon   a   politioal   officer   of  the 

""Harward   v   St.   Clair  Drainage   Co.,   51    111.    130    (1869). 

"^Harward  v  St.  Clair  DraJnage  Co.,  51  111.  130  (1869);  Board  of  Directors 
v  Hou.ston,    71    111.    318    (1874). 

«s  People  V  Mayo-  of  City  of  Chicago.    51    111.    17    (1869). 

<"  People  V  McAdams,  82  111.  356  (1876).  For  other  slmilpr  case.s  see  Hessler 
v  Drainage  Commissioners,  53  111.  105  (1870);  Lovingstoi:  v  Wider,  53  111. 
302  (1870);  Wider  v  City  of  East  St.  Louis,  55  111.  133  (1870):  Gage  v  Graham, 
57    111.    144    (187C);   Snell   v  City   of  Chicago,    133   111.    413    (18  »0). 

™51    111.    37    (1869). 

T*107   111.   372    (1883). 


Article  9,  Section  9  223 

state  erxti'usted  with  the  appointing  power.  But  however  this  may  be, 
they  never  assented  to  any  other  or  different  mode  of  appointment  of  the 
corporate  autliorities,  and  until  they  have  done  so  they  can  not  be  bound 
to  accept  them." 

The  rule  with  reference  to  corporate  authorities  is  the  same  under  the 
constitution  of  1870  as  it  was  under  the  constitution  of  1848.  "The  clause 
in  the  constitution  of  1870,  adopted  in  the  light  of  this  construction,  must 
be  construed  in  the  same  manner  as  was  construed  the  kindred  clause  in 
the  constitution  of  1848.'"^  Corporate  authorities  must  be  elected  by  the 
people  to  be  taxed  or  appointed  in  some  mode  to  which  the  people  subject 
to  taxation  have  given  their  assent,  and  the  method  of  appointment,  once 
approved  by  the  people,  cannot  be  changed  without  their  consent."  The 
board  of  election  commissioners  in  a  city  which  has,  by  popular  vote, 
adopted  the  city  election  act  may  incur  obligations  pursuant  to  that  act 
and  require  the  city  to  pay  the  same,  even  though  the  commissioners  are 
appointed  by  the  county  judge  of  the  county  in  which  the  city  is  situated.'^* 
By  adopting  the  act  creating  the  election  commissioners,  the  people  of  the 
city  consent  to  the  appointment  of  these  officers  by  the  county  judge,  and 
they  are,  therefore,  the  corporate  authorities  of  that  city  for  the  purpose 
of  incurring  election  expenses  to  be  paid  by  that  municipality.  But  the 
General  Assembly  cannot  authorize  a  drainage  district  to  construct  a  ditch 
or  channel  across  a  highway  and  require  the  highway  commissioners  of 
the  township  or  road  district  in  which  the  highw^ay  is  located  to  build  a 
bridge  across  the  channel  of  the  drainage  district  at  the  expense  of  the 
township  or  road  district.^"  The  effect  of  a  law  of  that  character  would  be 
to  authorize  the  drainage  commissioners,  who  are  not  the  corporate  au- 
thorities of  the  township  or  road  district,  to  impose  taxes  for  corporate 
purposes  on  the  people  of  the  township  or  road  district.  The  mere  fact 
that  in  this  case  the  drainage  commissioners  do  not  levy  a  tax  for  road 
and  bridge  purposes  on  the  property  within  the  township  or  road  district 
does  not  alter  the  situation.  The  drainage  commissioners  are  given  the 
power  to  impose  a  debt  upon  the  township  or  road  district,  and  the  town- 
ship or  road  district  could  not  satisfy  that  debt  without  levying  a  tax  for 
that  purpose.  The  effect  is  the  same  as  if  the  drainage  commissioners 
were  given  the  express  power  to  levy  a  tax  on  the  property  in  the  town- 
sliip  or  road  district  for  road  and  bridge  purposes.  In  either  event  the 
people  in  the  township  or  road  district  would  be  called  upon  to  pay  a  tax 
not  levied  as  an  exercise  of  the  judgment  and  discretion  of  the  duly  con- 
stituted corporate  authorities  of  the  township  or  road  district.  Debts  for 
corporate  purposes  which  can  be  met  only  by  funds  raised  by  taxation 
cannot  be  imposed  upon  any  municipal  corporation  against  the  will  or 
without  the  consent  of  either  the  people  of  the  municipality  or  its  cor- 
porate authorities.'*' 

(For  a  further  statement  with  reference  to  this  subject,  see  discus- 
sion following   subheading.) 


Power  of  General  Assembly  to  Impose  taxes  on  municipal  corpDrations 
for  corporate  purposes.  Taxes  for  the  corporate  purposes  of  a  munici- 
pality can  be  levied  only  by  the  corporate  authorities  of  the  municipality. 
(See  discussion  under  preceding  subheading).  Section  10  of  this  article 
provides  that  "the  General  Assembly  shall  not  impose  taxes  upon  munici- 


'2  Cornell  v  People,   107  111.  372   (1883). 

^Cornell  v  People.  107  111.  372  (1883).  See  People  v  Knopf.  171  111.  191 
(1898 ) 

'iWetherell  v  Devlne,  116  111.  631  (1886).  See  City  of  Chicago  v  Wolf,  221 
111.    130    (1906). 

^^Morg-an  v  Schusselle,  228  111.  106  (1906);  People  v  Block.  276  111.  286  (1916); 
but  see  Drainage  Commissioners  v  Rector  Drainage  District,  266  111.  536   (1915). 

^«  People  V  Block.  276  111.  286  (1916).  See  People  v  County  of  Williamson, 
286   111.   44    (1918). 


224  Article  9,  Section  9 

pal  corporations,  or  the  inhabitants  or  property  thereof,  for  corporate  pur- 
poses, but  shall  require  that  all  the  taxable  property  within  the  limits 
of  municipal  corporations  shall  be  taxed  for  the  payment  of  debts  con- 
tracted under  authority  of  law,  such  taxes  to  be  uniform  in  respect  to  per- 
sons and  property,  within  the  jurisdiction  of  the  body  imposing  the  same." 
The  evident  purpose  of  this  provision  was  to  make  doubly  sure  that  taxes 
for  corporate  purposes  should  be  levied  only  by  the  corporate  authorities 
of  the  municipal  corporation  imposing  them.  The  constitution  of  1848  con- 
tained no  similar  provision,  but  it  was  held,  nevertheless,  that  under  that 
instrument  the  General  Assembly  could  not  levy  taxes  on  municipalities  for 
the  corporate  purposes  of  those  municipalities.'^'^  In  Marshall  v  Silliman^^ 
the  facts  were  as  follows:  An  election  was  held  in  a  certain  township  to 
determine  whether  or  not  the  township  should  issue  bonds  in  aid  of  a  cer- 
tain railroad,  and  the  result  was  favorable  to  the  proposed  issue  of  bonds. 
The  election,  however,  was  illegal  because  there  was  no  statutory  authoriza- 
tion for  holding  it.  The  General  Assembly  then  passed  an  act  purporting 
to  validate  the  illegal  election  and  the  bonds  issued  thereunder.  But 
the  court  held  that  the  validating  act,  in  so  far  as  the  bonds  were  concerned, 
was  unconstitutional  because  it  permitted  the  General  Assembly  indirectly 
to  levy  taxes  on  the  property  of  the  township  for  corporate  purposes. 
The  court  took  the  view  that  the  bonds,  having  been  is^ed  pursuant  to 
an  unauthorized  election,  were  null  and  void;  that  the  township  was  not 
bound  to  levy  taxes  to  pay  the  bonds;  that  to  permit  the  General  Assembly 
to  validate  the  bonds  would  be  to  sanction  the  creation  by  the  General 
Assembly  of  a  debt  against  the  township  which  could  be  met  only  by 
money  raised  by  taxation;  and  that,  since  the  debt  could  be  paid  only  by 
taxes  levied  for  that  purpose,  the  validating  act  in  effect  authorized  the 
General  Assembly  to  impose  taxes  iipon  the  township  for  corporate  pur- 
poses, contrary  to  that  provision  of  the  constitution  of  1848  which  required 
that  taxes  for  corporate  purposes  should  be  imposed  by  the  corporate  au- 
thorities of  the  taxing  district.  In  1918,  however,  it  was  held  by  a  divided 
court  that  an  act  of  the  General  Assembly  purporting  to  validate  the 
proceedings  of  high  school  districts  organized  under  an  unconstitutional 
law,  had  the  effect  of  validating  all  tax  levies  in  such  districts  even  though 
the  levies  were  made  prior  to  the  enactment  of  the  validating  act.'^' 

There  is,  however,  a  clear  distinction  between  the  imposition  on  a  mu- 
nicipality, without  its  consent  or  that  of  its  duly  constituted  corporate  au- 
thorities, of  an  original  debt  which  cannot  be  discharged  except  by  funds 
acquired  through  taxation,  and  the  levy  of  a  tax  to  pay  a  debt  of  a  munici- 
pality contracted  under  full  authority  of  law.  If  a  municipality  with  the 
consent  of  its  people,  or  of  its  corporate  authorities,  incurs  a  binding  obliga- 
tion, the  General  Assembly  has  full  pov/er  to  levy  taxes  on  the  property 
in  that  municipality,  for  the  purpose  of  discharging  the  debt,  and  need 
not  provide  that  the  taxes  necessary  to  meet  the  obligation  be  imposed 
by  the  corporate  authorities  of  the  indebted  municipal  corporation.  The 
reason  for  this  holding  is  that  section  10  of  this  article  expressly  provides 
that  the  General  Assembly  "shall  require  that  all  taxable  property  within 
the  limits  of  municipal  corporations  shall  be  taxed  for  the  payment  of 
debts  contracted  under  authority  of  law."  So,  in  a  case  where  bonds,  issued 
in  compliance  with  the  vote  of  the  people  of  a  municipality,  are  registered 
with  the  Auditor  of  Public  Accounts  under  a  certain  statute,  the  General 
Assembly  may  require  the  Auditor  of  Public  Accounts  to  levy  taxes  on  the 
property  in  that  municipality,  in  such  an  amount  as  will  be  sufficient  to 
discharge  the  bonds  as  they  become  due,  together  with  the  interest 
thereon.^" 


^■'Marshall  v  Silliman,  61  111.  218  (1871);  Gaddis  v  Richland  County,  92  111. 
119    (1879). 

^"^61  111.  218  (1871):  see,  also.  C.  B.  &  Q.  R.  R.  Co.  v  Aurora,  99  111.  205 
(1881). 

™  People  v  Mathews,   282   111.   85    (1918). 

s^Dunnovan  v  Green,  57  111.  63    (1870);  Decker  v  Hughes,  68  111.   33    (1873). 


Article  9,  Section  9  225 

It  must  also  be  remembered  that  the  constitution  merely  prohibits 
the  General  Assembly  from  imposing  taxes  on  municipal  corporations  for 
corporate  purposes.  It  does  not  deprive  the  General  Assembly  of  the  power 
to  impose  taxes  on  municipal  corporations  for  purposes  not  merely  local 
in  their  character.  "The  General  Assembly  may  compel  a  municipal  cor- 
poration to  perform  any  duty  which  relates  to  the  general  welfare  and 
security  of  the  state  although  the  performance  of  the  duty  will  result  in 
taxation  or  create  a  debt  to  be  paid  by  taxation.  It  may  require  a  county 
to  build  a  court  house  for  the  administration  of  justice  and  provide  offices 
and  agencies  for  the  collection  of  the  revenue  of  the  state,  to  build  and 
maintain  a  jail  for  the  confinement  of  offenders  against  the  laws  of  the 
state,  to  support  paupers,  or  to  establish  such  regulations  as  are  necessary 
for  the  public  health  and  safety  and  to  provide  a  force  to  make  the  regula- 
tions effective,  although  the  requirement  in  either  case  would  result  in  the 
levy  of  a  tax."^^  And  so  it  has  been  held  that  "roads  and  bridges  are  not 
merely  for  local  use  but  are  for  the  use  and  accommodation  of  all  citizens 
of  the  state,  and  it  is  within  the  power  of  the  General  Assembly  to  provide 
that  counties  shall  build  roads  and  bridges  and  that  a  county  shall  pay  its 
proportionate  share  of  the  cost  of  a  bridge  across  a  stream  on  the  boundary 
line  between  it  and  another  county."®-  The  General  Assembly  may  direct 
a  county  to  pay  one-half  the  cost  of  constructing  a  bridge  across  a  stream 
in  a  township  in  that  county.*^  On  the  same  theory  counties  may  be  required 
to  pay  election  expenses,'**  a  part  of  the  expenses  of  city  courts,*-'  and  a 
part  of  the  cost  of  changing  a  railroad  grade  crossing  to  an  elevated  or 
subway  crossing.^"  Counties  may  also  be  required  to  pay  for  the  mainte- 
nance and  care  of  dependent  children.'''  Townships  may  be  required  to 
support  paupers***  and  pay  a  part  of  the  cost  of  separating  a  railroad  grade 
crossing.''''  Park  districts  may  be  compelled  to  levy  a  tax  for  a  park  police- 
men's pension  fund  because  park  policemen  are  required  not  only  for  the 
local  government  of  the  park  districts,  but  for  the  general  welfare  of  the 
state  as  a  whole.""  And  a  city  may  be  made  liable  for  damages  to  prop- 
erty occasioned  by  mob  violence  because  the  maintenance  of  good  order  is  a 
matter  of  state  concern  and,  to  emphasize  the  necessity  for  law  enforce- 
ment by  its  local  governmental  agencies,  the  state  may  impose  a  penalty 
of  this  character  for  failure  to  suppress  mobs  and  riots.  The  imposition 
of  such  a  penalty,  while  it  creates  a  debt  against  the  city  which  can  be 
discharged  only  by  taxation,  is  a  debt  not  for  a  purely  local  purpose  but 
is  for  the  general  state  or  public  purpose  of  affording  more  adequate  se- 
curity to  life  and  property.®^ 

It  has  been  said  in  some  of  the  judicial  decisions  that  sections  9  and  10 
of  this  article  do  not  apply  to  counties  and  townships.^-  The  implication 
to  be  derived  from  these  decisions  is  that  the  General  Assembly  may 
authorize  the  imposition  of  taxes  for  the  corporate  purposes  of  counties 
and  townships  by  persons  other  than  the  corporate  authorities  of  those 
municipal  corporations,  and  that  the  General  Assembly,  itself,  is  free  to 
impose  taxes  for  corporate  purposes  on  such  municipalities.  The  state- 
ments to  that  effect,  however,  were  not  necessary  to  the  decisions  in  which 


SI  People   V   County  of  Williamson,   286   111.    44    (1918). 

8^  People  V  County  of  Williamson,  286  111.  44  (1918).  See  People  v  Block, 
276    111.    286     (1916). 

8-'5  Board    of    Supervisors    v    People,    110    111.    511    (1884). 

»iWetherell    v    Devine,        116    111.    631    (1886). 

*«City  of  Chicago,  v  Knobel.  232  111.  112  (1908);  but  see  People  v  Stookey, 
98    111.    537    (1881);    Veto   Messagres,    1917.   p.    44. 

««C.   M.    &   St.    P.    Ry.   Co.    v    Lake   County,    287    111.    337    (1919). 

s-'St.   Hedwig's   School  v  Cook   County.   289    111.    432    (1919). 

8'^  Town    of    Fox    v    Kendall,    97    111.    72    (1880). 

83  C.    M.    &    St.    P.    Ry.    Co.    v    Lake    County.    287    111.    337     (1918). 

»o  Board  of  Trustees  v  Commissioners  of  Lincoln  Park,  282  111.  348  (1918); 
but  see  Lovingston  v  Wider.    53   111.   302    (1870). 

SI  City  of  Chicago  v  Manhattan  Cement  Co.,  178  111.  372  (1899);  Sturges  v 
City    of   Chicago,    237    111.    46    (1908). 

saWetherell  v  Devine.  116  111.  631  (1886);  Bolles  v  Prince.  250  111.  36  (1911); 
Raymond   v   Hartford   Fire   Insurance   Co.,    196    111.   329    (1902). 


226  Article  9,  Section  9 

they  were  made,  for  the  debts  sought  to  be  imposed  in  those  cases  were 
clearly  sustainable  as  being  for  a  purpose  not  distinctly  local  or  corporate 
in  character.  It  is  probable  that  in  those  cases  the  court  had  in  mind  the  dis- 
tinction between  counties  and  townships  on  the  one  hand  and  cities,  in- 
corporated towns  and  villages  on  the  other.  Counties  and  townships,  of 
course,  are  political  subdivisions  of  the  state  and  exist  primarily  as  state 
governmental  agencies.  Generally  any  function  to  be  performed  by  a 
county  or  township  is  of  such  a  character  that  it  cannot  be  said  to  be  a 
purely  local  corporate  purpose.  But  other  municipal  corporations,  such  as 
cities  and  villages,  while  they  may  bg  charged  with  the  duty  of  performing 
functions  as  state  governmental  agencies,  are  created  largely  for  the  pur- 
pose of  local  regulation  or  government  as  distinguished  from  the  admin- 
istration of  the  state  government. 

These  sections  of  the  constitution  forbid  the  imposition  of  taxes  on 
municipal  corporations  for  local  purposes  by  any  persons  except  their  cor- 
porate authorities.  These  sections,  however,  do  not  prevent  the  imposi- 
tion of  taxes  on  municipalities  for  other  than  purely  local  purposes  by  some 
agency  other  than  the  corporate  authorities.  Since  the  functions  of  coun- 
ties and  townships  generally  relate  to  the  administration  of  the  state  gov- 
ernment, it  is  obvious  that  in  most  cases  the  imposition  of  debts  or  taxes 
on  such  municipal  corporations  is  not  restricted  by  the  sections  of  the 
constitution  under  consideration.  But  that  is  true  because  the  debt  or  tax 
imposed  is  not  for  a  purely  corporate  purpose  and  not  because  these  sec- 
tions fail  to  prevent  the  imposition  of  taxes  for  corporate  purposes  on 
these  municipalities  by  persons  other  than  their  corporate  authorities. 
It  is  believed  that  the  statements  made  in  the  decisions  previously  referred 
to  are  based  on  the  fact  that  counties  and  townships,  because  they  are 
political  subdivisions,  seldom,  if  ever,  perform  functions  that  are  distinctly 
local  in  character;  and  that,  if  the  issue  is  distinctly  presented  whether  or 
not  a  debt  or  tax  for  a  purely  local  corporate  purpose  may  be  imposed  -on  a 
county  or  a  township  without  the  consent  of  its  people,  or  that  of  its  duly 
constituted  corporate  authorities,  the  court  would  probably  hold  that  the 
constitution  forbids  such  action. 


Uniformity.  Both  sections  9  and  10  of  this  article  require  that  munici- 
pal taxes  "shall  be  uniform  in  respect  to  persons  and  property  within  the 
jurisdiction  of  the  body  imposing  the  same."  Section  1  of  this  article  pro- 
vides that,  with  reference  to  state  taxes,  each  person  and  corporation  shall 
pay  a  tax  in  proportion  to  the  value  of  his,  her  or  its  property.  The  re- 
quirement of  taxation  in  proportion  to  value  applies  to  municipal  taxes 
as  well  as  to  state  taxes.  "The  9th  section  of  article  nine  of  the  constitu- 
tion, in  authorizing  taxes  to  be  laid  and  collected  by  municipal  corpora- 
tions, provides  that  such  taxes  shall  be  uniform  in  respect  to  persons  and 
property  within  the  jurisdiction  imposing  the  same.  To  secure  that  uni- 
formity, two  things  are  essential:  First,  the  assessments  shall  be  just  and 
equal,  in  proportion  to  the  value  of  the  property  liable  to  assessment;  and 
secondly,  when  thus  assessed,  the  rate  shall  be  uniform  as  to  every  person, 
and  on  every  species  of  property,  returned  by  the  assessor  for  taxation."  ^ 
The  purpose  of  the  requirement  that  the  taxation  of  property  shall  be  by 
valuation  is  to  obtain  uniformity  and  equality  of  taxation.  In  the  main, 
therefore,  the  problem  of  uniformity  with  respect  to  municipal  taxes  is  the 
same  as  that  relating  to  state  taxes,  and  since  the  question  of  uniformity 
with  reference  to  state  taxes  is  discussed  elsewhere  in  this  volume,  there 
will  be  no  need  at  this  time  to  repeat  that  discussion.  (See  discussion 
article  9,  section  1,  center  subheading,  "Uniformity"). 

Municipal  corporations,  however,  embrace  but  a  portion  of  the  territory 
of  the  state,  and  the  requirement  of  sections  9  and  10  with  respect  to  uni- 
formity as  to  persons  and  property  within  the  limits  of  the  municipalities 


83  Sherlock   v   Village   of   Winnetka,    68    111.   530    (1873). 


Article  9,  Section  9  227 

imposing  taxes,  therefore,  presents  some  questions  that  do  not  arise  in 
connection  with  taxes  for  state  purposes  which  are  imposed  on  all  the 
property  in  the  state.  All  property  in  a  municipality  levying  a  tax  for 
corporate  purposes  must  be  subjected  to  the  tax.'**  A  municipal  tax  for 
general  purposes  which  is*  levied  against  only  one  species  of  property  in 
the  municipality  imposing  the  tax,  or  against  the  property  in  but  one  por- 
tion of  the  municipality,  is  void  because  it  does  not  operate  uniformly  with 
respect  to  all  property  in  the  taxing  district."''  When  it  becomes  necessary 
under  the  "Juul  Law"  to  reduce  the  taxes  in  a  certain  part  of  a  taxing  dis- 
trict, the  reduction  must  be  made  in  the  same  manner  in  all  parts  of  the 
district.^  And  ?or  the  same  reason  the  General  Assembly  cannot  authorize 
a  township  to  levy  a  poll  tax  for  road  purposes  but  exempt  from  the  tax 
all  persons  residing  in  a  city  or  village  included  in  whole  or  in  part  within 
the  boundaries  of  the  township."' 

This  does  not  mean,  however,  that  a  local  tax  is  void  simply  because 
a  certain  tract  of  land  in  the  municipality  has  been  omitted  from  assess- 
ment as  the  result  of  an  error.  If  the  tax  levy  ordinance  contemplated  that 
all  property  in  the  municipality  should  be  subject  to  the  tax  the  inadvertent 
omission  of  certain  property  from  assessment  will  not  be  a  violation  of 
the  rule  of  uniformity.'-"*  But  the  failure  to  assess  certain  property  cannot 
operate  to  increase  the  rate  of  taxation  on  the  property  listed  for  assess- 
ment in  the  municipality  imposing  the  tax."^ 


Commutation  of  municipal  taxes.  Section  6  of  this  article  is  designed 
for  the  purpose  of  preventing  the  commutation  of  state  taxes — that  is,  the 
duty  or  privilege  of  paying  state  taxes  in  a  manner  other  than  according 
to  the  method  generally  employed  for  the  levy  and  collection  of  state  taxes. 
(See  discussion  article  9,  section  6,  sub-heading,  "Commutation  of  state 
taxes.")  There  is  no  express  provision  in  the  constitution  forbidding  the 
commutation  of  municipal  taxes,  and  it  has  been  expressly  held  that  section 
6  of  this  article  does  not  extend  to  municipal  taxes.^ 

Under  the  constitutions  of  1818  and  1848  it  was  held  that  the  General 
Assembly  had  the  power  to  commute  state  and   local  taxes.=^     And   while, 


1^1  People  V  C.  &  W.  I.  R.  R.  Co.,   256  111.  388    (1912). 

e^Primm  v  City  of  Belleville.  59  111.  142  (1871);  C.  B.  &  Q.  R.  R.  Co.  v 
Aurora.  99  111.  205  (1881);  Villag-e  of  Lemont  v  Jenks,  197  III.  363  (1902);  see, 
also,  St.  Louis  Bridge  Co.  v  City  of  East  St.  Louis.  121  111.  238  (1887);  People 
V    Knopf,    171    111.    191    (1898). 

9«  People   V   C.   &   A.   R.    R.   Co.,    247    111.    458    (1910). 

9' Town  of  Dixon  v  Ide,  267  111.  445  (1915).  The  constitution  of  1848  (article 
9,  section  5)  contained  a  similar  provision  with  respect  to  the  uniformity  of 
municipal  taxes.  During  the  time  that  this  constitution  was  in  force  the 
General  Assembly  granted  many  special  charters .  to  cities  and  villages,  some 
of  which  contained  provisions  exempting  the  inhabitants  thereof  from  the 
obligation  of  laboring  a  certain  number  of  days  each  year  on  the  roads  outside 
the  limits  of  such  municipalities,  or  from  paying  taxes  to  procure  such  labor. 
Frequently  the  cities  or  villages  thus  specially  incorporated  were  located  within 
a  road  district,  and  the  effect  of  these  provisions  of  the  special  charters  was 
to  exempt  the  persons  living  in  those  cities  and  villages  from  the  payment 
of  the  road  taxes  (or  the  duty  to  labor  on  the  roads)  levied  by  the  road  dis- 
trict in  which  they  resided.  As  to  whether  or  not  these  provisions  of  the 
special  charters,  under  such  circumstances,  violated  the  constitutional  rule  of 
uniformity,  there  seems  to  be  some  confusion  in  the  decisions  of  the  court. 
In  O'Kane  v  Treat,  25  111.  557  (1861)  such  a  provision  was  held  void  as  being  in 
conflict  with  the  rule  of  uniformity  of  taxation  prescribed  by  the  constitution 
of  1848.  In  Town  of  Pleasant  v  Kost,  29  111.  490  (1863)  a  similar  provision 
was  sustained  on  the  ground  that  road  taxes  of  that  character  were  not  taxes 
in  a  constitutional  sense.  And  in  Cooper  v  Ash,  76  111.  11  (1875)  a  similar 
provision  was  sustained  on  the  ground  that  such  a  city  or  village,  by  reason 
of  the  exemption  from  such  taxes,  was  created  into  a  separate  and  distinct 
road  taxing  district,  responsible  only  for  the  roads  within  its  limits.  See, 
also,    Butz   v   Kerr,    123    111.   659    (1888);   Hunsaker   v   Wright,    30    111.    146    (1863). 

«»Merritt    v    Farris,    22    111.    303    (1859). 

»»Vittum   v   People,    183    111.    154    (1899). 
iWetherell  v  Devine,   116   111.   631    (1886). 

2  State  Bank  of  Illinois  v  People,  5  111.  303   (1843);  I.  C.  R.  R.  Co.  v  McLean 
County,  17  111.  291   (1855). 


228  Article  9,  Section  9 

under  those  constitutions,  taxes  could  not  be  commuted  without  the  impo- 
sition of  something  in  the  nature  of  an  equivalent  burden  on  the  person  or 
corporation  whose  taxes  were  commuted,^  there  was  no  necessity,  in  com- 
muting both  state  and  local  taxes,  to  provide  that  the  municipalities,  which 
were  deprived  of  their  power  to  tax  certain  property  in  the  ordinary  way, 
should  receive  anything  for  the  loss  of  revenue  thus  incurred.*  A  local 
tax  prior  to  1870  could  be  commuted  merely  by  the  payment  of  something 
in  lieu  thereof  into  the  state  treasury. 

In  Raymond  v  Hartford  Fire  Insurance  Company^  the  court  held  that 
sections  9  and  10  of  this  article,  even  if  they  do  not  absolutely  prevent  the 
commutation  of  municipal  taxes,  have  the  effect  of  forbidding  the  commuta- 
tion of  such  taxes  without  the  payment  of  something  in  the  nature  of  an 
equivalent  to  the  municipalities  that  are  deprived  of  the  power  to  tax 
certain  property.  The  decision  was  based  on  the  ground  that  these  sections 
of  the  constitution  require  that  all  property  in  a  municipal  corporation 
shall  be  taxed  for  the  payment  of  its  debts,  and  that  all  municipal  taxes  shall 
be  uniform  in  respect  to  persons  and  property  within  the  jurisdiction  of 
the  body  imposing  the  same.  In  the  opinion  of  the  court  the  release  of 
certain  property  within  a  municipal  corporation  from  taxation  by  that  body, 
without  at  least  requiring  the  payment  to  the  municipal  corporation,  of 
something  in  the  nature  of  an  equivalent  in  lieu  thereof,  would  be  in  viola- 
tion of  these  provisions  of  sections  9  and  10. 

The  court  realized  no  doubt  that  the  constitution  of  1848  (article  9, 
section  5)  contained  provisions  similar  to  those  of  sections  9  and  10  of 
this  article,  and  distinguished  the  case  of  Illinois  Central  Railroad  Company 
V  McLean  County,"  which  was  decided  in  1855,  and  which  sustained  the 
power  of  the  General  Assembly  to  commute  local  taxes  merely  for  the  pay- 
ment of  money  into  the  state  treasury,  on  the  ground  that  the  earlier  case 
Involved  the  commutation  of  county  taxes.  The  court  took  the  position 
that  sections  9  and  10  of  this  article  applied  only  to  municipal  corporations 
proper — that  is,  cities,  incorporated  towns  and  villages  as  distinguished 
from  counties  and  townships. 

It  is  difficult  to  ascertain  just  what  is  the  effect  of  this  decision.  It 
holds  clearly  that  there  can  be  no  commutation  of  local  taxes  with  respect 
to  cities,  towns,  villages  and  other  similar  municipal  corporations,  unless 
those  municipalities  receive  something  else  of  value  for  the  taxes  released. 
But  it  intimates  that,  with  respect  to  cities,  towns,  villages  and  other  like 
bodies,  there  can  be  no  commutation  of  local  taxes  under  any  circumstances, 
and  it  also  intimates  that  the  local  taxes  of  counties  and  other  similar 
municipalities,  such  as  townships,  perhaps,  may  be  commuted  under  any 
conditions   that   the   General  Assembly   may   see   fit   to   impose. 


Power    of    municipalities    to    impose    occupation    and    franchise    taxes. 

Sections  9  and  10  of  this  article  refer  only  to  taxes  on  property.  While 
cities  and  other  similar  municipal  corporations  may  be  authorized  by  statute 
to  impose  occupation  and  franchise  taxes  such  taxes  are  not  governed  by 
these  sections.  The  General  Assembly  by  virtue  of  the  last  clause  of  sec- 
tion 1  of  this  article,  has  the  power  to  exact  occupation  and  franchise 
taxes,  and  this  power  may,  if  the  General  Assembly  sees  fit,  be  delegated 
to  municipalities."^  (See  discussion  article  9,  section  1,  subheading,  "Taxa- 
tion of  occupations,  franchises  and  privileges.") 


»Hunsaker  v  Wright,  30  111.  146  (1863).  This  case  also  held  that  in  the 
commutation  of  taxes  the  General  Assembly  was  the  sole  judge  as  to  whether 
or  not  the  value  of  the  burden  imposed  in  lieu  of  taxes  was  equivalent  to  the 
amount  of  taxes  released.  See,  also.  Board  of  Supervisors  v  Campbell,  42  111. 
490    (1867). 

"I.   C.   R.   R.   Co.   V  McLean   County,    17   111.    291    (1855). 

5  196    111.    329    (1902). 

«17    111.    291    (1855). 

7  Walker  v  City  of  Springfield,  94  111.  364  (1880);  Banta  v  City  of  Chicago, 
172  111.  204   (1898);  but  see  Braun  v  City  of  Chicago,   110   111.  186    (1884). 


Article  9,  Section  9  229 

Special  assessments  and  special  taxation  for  local  Improvements.  Sec- 
tion 9  of  this  article  provides  that  "the  General  Assembly  may  vest  the 
corporate  authorities  of  cities,  towns  and  villages,  with  power  to  make 
local  improvements  by  special  assessment  or  by  special  taxation  of  con- 
tiguous property,  or  otherwise." 


In   general. 

The  constitution  of  1848  contained  no  express  provision  authorizing 
the  construction  of  local  improvements  by  special  assessments  or  special 
taxation.  The  power  to  make,  such  improvements  by  special  assessments, 
however,  was  sustained  under  the  provisions  of  that  instrument  (article 
9,  section  5),  which  authorized  the  General  Assembly  to  vest  the  corporate 
authorities  of  certain  municipal  corporations  with  power  to  levy  taxes  for 
corporate  purposes.  But  the  rule  of  equality  and  uniformity  of  taxation 
required  by  the  second  constitution  (article  9,  sections  2,  5)  was  applied 
to  such  proceedings.^  Not  only  was  it  necessary  that  the  special  assess- 
ment against  a  particular  lot  or  tract  of  land  should  not  exceed  the  bene- 
fits, but  it  was  imperative  that  all  property  in  the  municipality  making  the 
improvement  should  be  assessed  equally  and  in  proportion  to  the  bene- 
fits conferred."  "The  assessment  must  be  laid  upon  all  property  that  is 
substantially  and  directly  benefited.  This  necessarily  excludes  all  per- 
sonal property  of  a  movable  nature.  Its  value  cannot  be  affected  by  lay- 
ing this  pavement.  But  every  estate  in  land  adjacent  to  the  street,  whether 
in  fee,  for  life  or  for  a  term  of  years,  may  be  increased  in  value.  If 
adjacent  property  is  held  under  a  lease  for  fifty  or  a  hundred  years,  the 
berefit  to  the  property  arising  from  replacing  an  old  by  a  new  pavement, 
would  probably  accrue  wholly  to  the  lessee."^"  And  the  judicial  decisions 
under  that  constitution  seem  to  hold  that  in  any  local  improvement  proceed- 
ing it  was  necessary  to  charge  at  least  a  part  of  the  cost  of  the  improve- 
ment to  the  general  funds  of  the  interested  municipality.  "We  cannot 
understand  how  it  is.  that  a  law  which  places  the  burden  upon  the 
property  adjacent  to  the  improvement,  is  a  more  equitable  apportionment 
than  if  imposed  upon  the  entire  property  of  the  city,  ward  or  district. 
Nor  is  it  true  that  the  grading,  paving,  etc.,  of  a  street  in  Chicago,  or  other 
large  and  growing  city,  is  a  more  local  improvement,  the  expense  of  which 
adjacent  proprietors  should  wholly  bear.  It  is  a  matter  of  public  benefit, 
extending  throughout  the  chartered  limits  of  the  city.  Are  not  the  owners 
of  property  on  Wabash  avenue  and  Halsted  street,  or  on  the  most  remote 
street  in  Chicago,  and  those  residing  thereon,  benefited  by  the  grading, 
paving,  etc.,  of  Lake,  Randolph,  or  Dearborn,  or  Clark  streets?  If  so, 
should  they  not  bear  a  fair  proportion  of  the  expense,  to  be  assessed  on 
the  principle  of  valuation  and  uniformity,  and  of  benefits?  It  does  not  fol- 
low .  .  .  that  the  owner  of  an  adjacent  lot  is  benefited  by  an  im- 
provement, the  cost  of  which  amounts  to  the  full  value  of  his  lot,  and  which 
may  require  an  additional  expenditure  by  him,  to  make  his  lot  accessible. 
In  these  improvements,  the  whole  public  are  interested,  and  that  public 
should  pay  the  cost,  on  the  principle  we  have  suggested;  that  is,  assess 
to  each  lot  the  special  benefits  it  will  derive  from  the  improvement, 
charging  such  benefits  upon  the  lots,  the  residue  of  the  cost  to  be  paid  by 
equal  and  uniform  taxation.  In  this  way,  the  demands  of  the  constitution 
may  be  fulfilled,  and  injustice  done  to  no  one."" 


8  City  of  Chicag'o  v  Larned.  34  111.  203  (1S64).  The  power  to  levy  special 
assessments  under  the  constitution  of  184S  was  sometimes  referred  to  as  an 
exercise  of  the  power  of  eminent  dornain — that  is,  that  the  money  of  a  person 
whose  property  was  benefited  by  an  improvement  was  taken  and  he  was  com- 
pensated therefor  by  the  benefits.  See  the  discussion  of  this  question  In  the 
case  cited  in  this  note. 

»City  of  Ottawa  v  Spencpr.  40  111.  211  (1866):  Scammon  Y  City  of  Chi- 
cagro.    42   111.   1P2    (1866);    Bedard   v   Hall.    44    111.    91    (1867). 

I"  City  of  Chicago   v   Baer,    41    Til.    306    (1866). 

"City  of  Chicago  v   Larned.    34    111.   203    (1864);   see,   also,    St.   .John  v   City 
of   East    St.    Douis,    50    111.    93    (1869), 


230  Article  9,  Section  9 

The  effect  of  this  construction  of  the  constitution  of  1848  was  to  prevent 
any  proceeding  to  charge  the  entire  cost  of  a  local  improvement  to  the 
abutting  or  contiguous  property  without  a  proceeding  to  determine  whether 
or  not  the  assessments  exceeded  the  benefits.  And  that  portion  of  sec- 
tion 9  of  article  9  which  authorizes  the  construction  of  local  improvements 
by  special  taxation  of  contiguous  property,  was  inserted  in  the  present 
constitution  for  the  express  purpose  of  overcoming  this  construction.  (De- 
bates, p.  1671-6). 

There  is  now  constitutional  authority  for  the  construction  of  local 
improvements  by  special  assessments,  or  by  special  taxation  of  contiguous 
property,  or  otherwise.  What  is  meant  by  the  terms  "special  assessment" 
and  "special  taxation"  as  used  in  the  present  constitution?  With  respect 
to  special  assessments,  the  constitution  of  1848  required  two  elements. 
(1)  The  assessment  on  any  property  should  not  exceed  the  benefits.  (2) 
All  property  in  the  municipality  imposing  the  assessment  should  be  assessed 
equally  in  proportion  to  benefits.  And  that  constitution  probably  required 
a  third  element.  (3)  In  the  construction  of  any  local  improvement  at  least 
a  part  of  the  cost  thereof  should  be  assessed  to  the  interested  municipality 
and  met  by  general  taxation.  While  the  Supreme  Court  has  said  that  spe- 
cial assessments  under  the  present  constitution  are  the  same  as  under  the 
u  earlier  document,^-  it  seems  that  only  one  of  the  previous  elements  is  now 
I  necessary  in  so  far  as  the  constitution  of  1870  is  concerned.  Special  as- 
l  sessments  may  not  exceed  the  benefits"  but  there  is  no  necessity  that,  with 
reference  to  any  local  improvement,  every  parcel  of  property  in  the 
municipality  making  the  improvement  shall  be  assessed  equally  in  pro- 
portion to  the  benefits  conferred  upon  it.  As  a  matter  of  fact,  special  as- 
sessments may  be  limited  to  the  property  contiguous  to  the  proposed  im- 
provement." Nor  is  there  any  constitutional  requirement  that  a  part  of  the 
cost  of  every  local  improvement  shall  be  met  by  general  taxation.^^ 

But  while  special  assessments  must  not  exceed  the  benefits,  this  rule 
does  not  apply  to  special  taxation  of  contiguous  property.  The  constitutional 
provisions  with  reference  to  special  taxation  were  inserted  for  the  express 
purpose  of  permitting  the  cost  of  a  local  improvement  to  be  assessed  against 
the    contiguous    or    abutting   property    without    a    proceeding    to    ascertain 

(whether  or  not  the  tax  exceeds  the  benefits.  "Whether  or  not  the  special 
tax  exceeds  the  actual  benefit-  to  the  lot  is  not  material.  It  may  be  sup- 
posed to  be  based  on  a  presumed  equivalent.  The  city  council  have  deter- 
:  mined  the  frontage  to  be  the  proper  measure  of  probable  benefits.  That 
is  generally  considered  as  a  very  reasonable  measure  of  benefits  in  the 
case  of  such  an  improvement,  Rnd  if  it  does  not  in  fact,  in  the  present 
case,  represent  the  actual  benefits,  it  is  enough  that  the  city  council  have 
deemed  it  the  proper  rule  to  apply."'"  "Special  taxation,  as  spoken  of  in 
our  constitution,  is  based  upon  the  supposed  benefit  to  the  contiguous  prop- 
erty, and  differs  from  special  assessments  only  in  the  mode  of  ascertain 
ing  the  benefits.  In  the  case  of  special  taxation,  the  imposition  of  the 
tax  by  the  corporate  authorities  is  of  itself  a  determination  that  the  bene- 
fits to  the  contiguous  property  will  be  as  great  as  the  burden  of  the  ex- 
pense of  the  improvement,  and  that  such  benefits  will  be  so  nearly  limited, 
or  confined  in  their  effect,  .to  contiguous  property,  that  no  serious  injustice 
will  be  done  by  imposing  the  whole  expense  upon  such  property.  In  the  case 
of  special  assessments,  the  property  to  be  benefited  must  be  ascertained 
bv  careful  investigation,  and  the  burden  must  be  distributed  according  to 
the  carefully  ascertained  proportion  in  which  each  part  thereof  will  be  bene- 


12  Guild  V  City  of  Chicago.  82  111.  472  (1876);  White  v  People,  94  111.  604 
(1880). 

"Citv   of   Chicae-o   v    Gait.    22.5    111.    368    0007). 

1*  Lake  v  City  of  Decstrr.  91  111.  596  (1879'):  "West  Chicap-o  Park  CDmmis- 
pionerc,  V  Farber.  171  111.  146  (1898)-  see.  also.  Gnilrl  v  City  of  Chicag-o.  82  111. 
472  nS76)  wher'^  it  is  held  that  under  the  constitution  of  1870  special  assess- 
ments   are    not    limited    to    rontisriious    property. 

1- People    V    Sherman.     S.*^    111.    165     (1876). 

1"  White   V  People,    94   111.    604    (1880). 


Article  9,  Section  9  231 

ficially  atfected."^'  But  this  does  not  mean  that  a  municipality  may  build 
local  improvements  and  charge  the  cost  thereof  to  the  contiguous  property 
absolutely  without  regard  to  benefits.  Special  taxes  for  local  improvements, 
after  all,  are  based  on  the  theory  that  the  property  specially  taxed  receives 
an  equivalent  benefit.  The  courts  ordinarily  will  not,  in  a  special  tax  pro- 
ceeding, inquire  into  the  question  whether  or  not  the  tax  exceeds  the  bene- 
fits, but  if  it  is  clear  that  a  municipality  is  arbitrarily  seeking  to  impose  a 
burden  on  property  without  any  regard  whatever  as  to  the  benefits  to  the 
property,  the  collection  of  the  special  tax  may  be  successfully  resisted. 
While  a  municipality  is  allowed  a  large  degree  of  discretion  in  determining 
that  a  special  tax  is  equivalent  to  the  benefits,  the  tax  must  be  imposed  as 
the  result  of  a  reasonable  and  honest  exercise  of  judgment.^^ 

As  has  already  been  pointed  out,  special  assessments  under  the  con- 
stitution of  1848  were  governed  completely  by  the  general  rules  of  equality 
and  uniformity  of  taxation.  Since  1870,  however,  these  rules  have  no  ap- 
plication to  special  assessments  and  special  taxation.  It  is  true  that  special 
assessments  must  not  exceed  the  benefits  and  special  taxes  must  not  be 
arbitrarily  imposed  without  any  regard  whatever  to  the  question  of  benefits. 
But  in  the  main,  the  rules  of  uniformity  no  longer  restrict  municipal  cor- 
porations in  providing  the  means  of  defraying  the  cost  of  local  improve- 
ments. A  city  may  provide  that  a  locai  improvement  in  one  part  of  the 
city  shall  be  made  by  general  taxation  and  that  a  similar  improvement  in 
another  part  of  the  city  shall  be  made  by  special  assessments.^'*  And  a  city 
may  charge  against  its  general  funds  a  greater  proportion  of  the  total  cost 
of  one  local  improvement  than  another."" 

It  must  be  remembered,  however,  that  the  power  of  municipalities  to 
levy  special  assessments  or  special  taxes  depends  upon  legislative  authori- 
zation. Cities,  towns  and  villages  cannot  levy  special  assessments  or  spe- 
cial taxes  unless  authorized  to  do  so  by  the  General  Assembly.  And  the 
General  Assembly  in  conferring  the  power  to  make  local  improvements  by 
special  assessments  or  special  taxation  may  impose  conditions  not  required 
by  the  constitution.  Thus,  the  General  Assembly,  while  it  need  not  have 
done  so,  has  required  that  special  taxes  shall  not  exceed  the  actual  benefits, 
and  that  the  nuestion  whether  or  not  the  tax  exceeds  the  benefits  shall 
be  reviewable  by  the  courts.-^  (Kurd's  Revised  Statutes,  1917,  chap.  24, 
sec.  541). 

Owners  of  property  subject  to  special  assessments  or  special  taxes 
cannot  be  made  personally  liable  for  the  special  assessments  or  special 
taxes  levied  against  their  property.--  Owners  of  property,  however,  may 
be  made  personally  responsible  for  general  taxes  levied  against  their  prop- 
erty.=^ 


WJpat    is    a    local    improvement. 

The  Supreme  Court  has  sought  to  define  the  term  local  improvement. 
In  Loeffler  v  City  of  Chicago,-''  it  was  said:  "That  term  [local  improvement] 
was  first  mentioned  in  the  constitution  of  1870.  The  term  'local  improve- 
ments,' as  used  in   said  section  9  of  article   9  of  the  constitution,   means 


"Craw  v  Villag-e  of  Tolono,  96  111.  255  (1880);  see,  also.  Enos  v  City  of 
Springfield,  113  111.  65  (1886);  City  of  Galesburg  v  Searles.  114  111.  217  (1885); 
City  of  Sterling-  v  Gait,  117  111.  11  (1886);  C.  &  N.  W.  Ry.  Co.  v  Village  of  Elm- 
hurst,   165  111.  148   (1897). 

IS  Craw  V  Village  of  Tolono,  96  111.  255  (1880);  City  of  Bloomington  v  C.  «& 
A.  R.  R.  Co.,  134  111.  451  (1890);  C.  &  N.  W.  Ry.  Co.  v  Village  of  Elmhurst,  165 
111.    148    (1897);   see,   also,    Davis   v   City   of   Litchfield,    145    111.    313    (1893). 

la  Murphy    v   People,    120    111.    234    (1887). 

-"City  of  Ottawa  v  Colwell,  260  111.  548  (1913);  see,  also,  County  of  Adams 
V  City  of  Quincy,  130  111.  566  (1889);  Davis  v  City  of  Litchfield,  145  111.  313 
(1893). 

=^iHull  v  People,  170  111.  246   (1897). 

"3  Craw  V  Village  of  Tolono.   96   111.   255    (1880). 

2»Douthett    V    Kettle,    104    111.    356    (1882). 

2^246    111.    43    (1910), 


232  Article  9,  Section  9 

such  improvements  as  are  paid  for  by  special  assessment  or  special  taxa- 
tion. In  a  certain  sense  all  improvements  within  a  manicipality  are  local, — 
that  is,  they  do  not  extend  to  all  parts  of  the  state.  They  have,  however, 
locality, — that  is,  they  are  nearer  to  some  persons  and  property  than  others, 
unaer  the  constitution  of  1848,  as  well  as  under  the  present  constitution,  it 
has  been  held  that  a  special  assessment  means  'an  assessment  to  pay  for 
an  improvement  for  public  purposes  upon  real  property  which  is,  by  rea- 
son of  the  locality  ol  the  improvement,  specially  benefited,  beyond  the 
benefits  by  the  improvement  to  real  property,  generally,  throughout  the 
municipality,  proportioned  by  such  benefits,'  A  local  improvement  is  a 
public  improvement  'which,  by  reaSon  of  its  being  confined  to  a  locality, 
enhances  the  value  of  adjacent  property,  as  distinguished  from  benefits 
diffused  by  it  throughout  the  municipality.'  The  test  as  to  whether  such 
an  improvement  is  local  is  whether  it  specially  benefits  the  property  as- 
sessed. An  improvement  may  be  local,  though  of  some  general  benefit  to 
the  public-,  when  the  substantial  benefits  to  be  derived  from  it  are  local 
in  their  nature  and  the  portion  of  the  city  where  the  improvement  is  made 
will  be  specially  and  peculiarly  benefited  in  the  enhancement  of  the  value 
of  the  property.  When  it  is  proposed  by  a  municipal  corporation  to  make 
an  improvement,  the  question  whether  it  is  local  in  its  character,  so  that 
it  can  be  made  by  special  assessment,  is  one  of  fact  and  not  of  law. 
The  corporate  authorities,  however,  cannot  arbitrarily  determine  that  the 
improvement  shall  be  treated  as  local  when  it  is,  in  fact,  general  in  its 
character.  Their  decision  on  this  question  is  subject  to  review  by  the 
courts." 

Two  muncipalities  cannot  join  in  a  special  assessment  proceeding  for 
the  purpose  of  defraying  the  cost  of  an  improvement  that  will  extend 
from  one  municipality  into  the  other.  Thus,  the  city  of  Chicago  and  the 
town  of  Cicero  cannot,  in  a  joint  special  assessment  proceeding,  provide 
for  the  construction  of  a  continuous  sewer,  designed  for  use  by  both  munici- 
palities, and  extending  from  one  into  the  other.'^  In  the  opinion  of  the 
court  a  local  improvement  must  be  wholly  under  the  control  of  one  munici- 
pality. 

An  improvement  which  is  designed  primarily  for  the  accomodation  and 
convenience  of  the  people  in  a  certain  part  or  locality  of  a  municipality, 
and  which  is  of  such  a  nature  that  it  confers  a  special  benefit  upon  the 
property  in  that  locality,  is  a  local  improvement,  evon  though  it  may  inci- 
dentally benefit  the  public  at  large;  but  an  improvement  which  is  designed 
primarily  for  the  benefit  of  the  general  public  is  not  a  local  improvement 
even  though  the  property  in  its  immediate  vicinity  may  receive  greater 
benefits  therefrom  than  property  generally  in  the  municipality.-*  An  im- 
provement which  contemplates  the  widening  of  the  Chicago  river  for  the 
purpose  of  improving  navigation  on  the  river,  is  not  a  local  improvement, 
and  the  cost  thereof  cannot  be  defrayed  by  special  assessments  or  special 
taxation.-'  A  city  has  no  power  to  provide  for  the  construction,  by  special 
assessments,  of  a  viaduct  or  bridge  over  a  deep  gulch  or  ravine,  for  the 
purpose  of  restoring  the  continuity  of  one  of  the  main  streets  in  the  city.^* 
But  a  city  may  provide  for  the  construction  of  a  viaduct  over  a  series  of 
railroad  tracks  which  cross  one  of  the  city's  principal  thoroughfares  and 
direct  that  the  cost  thereof  shall  be  paid  by  special  assessments.  And,  in 
such  a  case,  it  is  not  material  that  the  viaduct  when  completed  will  extend 
across  a  creek  and  serve  the  purpose  of  a  bridge  over  the  stream,  if  the 
evidence  shows  that  the  viaduct  could  not  be  pr(5perly  constructed  without 
locating  one  of  the  approaches  on  the  other  side  of  the  stream.'** 


2'' Loeffler  v  City  of  Chicapro,  246  111.  43  (1910);  see,  also.  Hundley  v  Lincoln 
Parl<    Commissioners.    67    111.    559     (1873). 

2«City   of   Wauke.i^an   v    DeWolf.    25S    111.    374    (1913). 

="City    of    Chicago    v    Law.    144    111.    569     (1893). 

28  City  of  Waukegan  v  DeWolf,  258  111.  374  (1913);  see,  also  City  of  Bloom- 
ington,    V    C.    &   A.    R.   R.   Co..    134    111.    451    (1890). 

2eL.   &   N.    R.    R.   Co.    v    City    of   East   St.    Louis,    134    ID.    656    (1890). 


Article  9,  Section  9  233 

"The  cost  of  constructing  a  reservoir,  of  sinking  a  well,  the  erection  of 
a  stand  pipe  and  the  pumping  works  and  buildings  for  the  same,  are  not 
local  improvements,  but  of  general  utility  to  the  inhabitants,  and  mu«t  be 
paid  for  by  general  taxation.  The  laying  of  pipes  for  the  conveyance  of 
water  along  a  particular  street  or  streets  is  local  to  the  particular  street 
and  of  special  benefit,  and  is  a  local  improvement,  and  may  be  paid  for  by 
special  assessment  or  special  taxation."  ='°  And  it  has  been  held  that  the 
poles,  wires  and  lamps  in  an  electric  light  system  are  local  improvements, 
but  that  the  power  house  and  generator  engines  are  not.^* 

An  act  of  the  General  Assembly  which  authorizes  parks  to  levy  a  special 
tax  on  contiguous  property  for  the  maintenance  and  repair  of  boulevards 
and  pleasure  driveways  is  unconstitutional.  "Original  paving  of  a  street 
brings  the  property  bounding  upon  it  into  the  market  as  building  lots.  Be- 
fore that,  it  is  a  road,  and  not  a  street.  It  is  therefore  a  local  improve- 
ment, with  benefits  almost  exclusively  peculiar  to  the  abutting  property. 
Such  a  case  is  clearly  within  the  principle  of  assessing  the  lots  lying  upon 
it  .  .  .  but  when  the  street  is  once  opened  and  paved,  thus  assimilated 
with  the  rest  of  the  city  and  made  a  part  of  it,  all  the  particular  benefits 
to  the  locality  derived  from  the  improvements  have  been  received  and  en- 
joyed. Repairing  streets  is  as  much  a  part  of  the  original  duty  of  the 
municipality — for  general  good — as  cleaning,  watching  and  lighting.  It 
would  lead  to  monstrous  injustice  and  inequality  should  such  general  ex- 
penses be  provided  for  by  local  assessments."  ^^ 

A  municipality  may  not  resort  to  special  assessments  or  special  taxation 
to  defray  the  cost  of  sprinkling  streets.  "A  local  improvement  .  .  is  a  pub- 
lic improvement  which  by  reason  of  its  being  confined  to  a  locality,  enhances 
the  value  of  adjacent  property,  as  distinguished  from  benefits  diffused  by 
it  throughout  the  municipality.  The  only  basis  upon  which  either  special 
assessments  or  special  taxation  can  be  sustained  is,  that  from  the  proposed 
local  improvement,  the  property  subjected  to  the  tax  or  assessment  will  be 
enhanced  in  value  to  the  extent  of  the  burthen  imposed  .  .  .  Used,  as 
it  is,  in  connection  with  special  assessments,  which  are  necessarily  based 
upon  the  idea  of  equivalent  benefits  to  the  property  owner,  the  idea  of 
permanency  in  the  improvement  is  necessarily  involved, — that  is,  the  bene- 
fit must  flow  from  the  actual  or  presumptive  betterment  of  the  street,  and 
must  be  of  such  character  as  to  enhance  the  market  value  of  the 
property."  '^  And,  on  the  same  theory,  it  has  been  held  that  the  General 
Assembly  cannot  provide  for  the  payment  of  the  cost  of  exterminating 
noxious  weeds  by  special  assessments  against  the  lands  from  which  the 
weeds  are  removed.^* 


Municipalities  that  may  be  authorized  to  make  local   improvements  by 
special    assessments   or   special    taxation. 

Section  9  of  this  article  provides  that  "the  General  Assembly  may  vest 
the  corporate  authorities  of  cities,  towns  and  villages,  with  power  to  make 
local  improvements  by  special  assessment  or  by  special  taxation  of  con- 
tiguous property,  or  otherwise."  The  enumeration  of  cities,  towns  and  vil- 
lages has  been  held  to  be  an  exclusion  of  all  other  municipalities.  The 
General  Assembly  may  confer  the  power  to  make  local  improvements  by 
special  assessments  and  special  taxation  only  on  the  corporate  authorities 
of  cities,  towns,  and  villages.  In  Updike  v  Wright  (1876),^^  It  was  held  that 
drainage  districts  could  not  be  given  the  power  to  levy  special  assessments. 
The  first  amendment  to  the  present  constitution  (article  4,  section  31),  was 


«« Hushes  V  Citv  of  Momence.  163  111.  5^35  (1896):  see,  also.  Village  of 
Morgan  Park  v  Wiswall.  155  111.  262  (1895);  O'Neil  v  People.  166  111.  561  (1897); 
Hewes  v  Glos.   170  111.   436    (1897);  Harts  v  People.   171   111.   458    (1898). 

siEwart  V  Village  of  Western  Springs,   180  111.  318    (1899). 

32  Crane    v    West    Chicago    Park    Commissioners,    153    111.    348     (1894). 

=«City   of   Chicago    v    Blair,    149    111.    310    (1894). 

''I  People    V    Board    of    Commissioners,    221    111.    493    (1906). 

3=-' 81    111.    49    (1876). 


2U  Article  9,  Section  9 

adopted  (1878)  for  the  express  purpose  of  enabling  drainage  districts  to 
impose  special  assessments.  (For  a  stateinent  as  to  the  power  of  drainage 
districts  to  levy  special  assessments,  see  discussion  article  4,  section  31.) 
Counties  and  townships  cannot  be  given  the  power  to  levy  special 
assessments  or  special  taxes  for  local  improvements.^*^  Park  districts,  how- 
ever, on  the  theory  that  park  commissioners  are  the  corporate  authorities 
of  the  cities,  towns  and  villages  in  which  the  park  districts  are  located, 
may  make  local  improvements  by  special  assessments  or  by  special  taxa- 
tion.^^  And,  while  it  is  difficult  to  see. how  the  park  commissioners  of  a  park 
district  which  embraces  a  part  of  a  city  and  part  of  a  township  can  be 
considered  the  corporate  authorities  of  a  city,  town  or  village,  the  power 
of  the  General  Assembly  to  authorize  such  a  park  district  to  levy  special 
assessments  has,  nevertheless,  been  sustained.'^  Only  the  corporate  authori- 
ties of  cities,  towns  and  villages  may  levy  special  assessments  or  special 
taxes  for  local  improvements.  A  township  cannot  do  so.  There  may  be 
some  justification  for  holding  that  the  park  commissioners  of  a  park  district 
located  wholly  within  one  city  or  town,  or  located  wholly  within  two  or  more 
cities  or  towns,  are  the  corporate  authorities  for  park  purposes  of  the 
municipality  or  municipalities  in  which  the  park  district  is  located.  But 
how  can  it  be  said  that  the  park  commissioners  of  a  park  district  located 
partly  in  a  city  and  partly  in  a  township  are  such  corporate  authorities, 
as  under  the  constitution,  may  be  given  the  authority  to  levy  special  assess- 
ments or  special  taxes  for  local  improvements?  If  the  commissioners  are 
deemed  the  corporate  authorities  of  the  city,  they  are  then  permitted  to 
exercise  jurisdiction  beyond  the  limits  of  the  city.  If  they  are  considered 
the  corporate  authorities  of  the  township,  then  the  power  to  levy  special 
assessments  and  special  taxes  is  being  exercised  by  the  township,  a  munici- 
pality which,  under  -the  constitution,  has  no  power  to  levy  such  assess- 
ments and  taxes.     (See  discussion  following  subheading.) 

Corporate  authorities. 
Only  the  corporate  authorities  of  cities,  towns  and  villages  may  levy 
special  assessments  and  special  taxes.  Who  are  corporate  authorities? 
With  respect  to  the  power  to  levy  general  taxes  the  corporate  authorities 
of  a  municipality  are  persons  who  are  directly  elected  by  the  people  to  be 
taxed  or  selected   or   appointed   in   some   mode   to  which   the   people   have 

•''"People  V  Board  of  Commissioners,  221  111.  493  (1906);  Report  Attorney 
General    1917-18.    p.    1034. 

»'^  Dunham  v  People,  96  111.  331  (1880);  West  Chicago  Park  Commissioners 
V  W.  U.  Telegraph  Co.,  103  111.  33  (1S82);  West  Chicago  Park  Commissioners  v 
Sweet,  167  111.  326  (1897);  West  Chicago  Park  Commissioners  v  Farber.  171 
111.  146  (1898).  The  basis  of  these  decisions  is  found  in  the  reasoning  of  the 
court  in  People  v  Salomon.  .^)1  111.  37  (1869).  which  was  decided  prior  to  the 
adoption  of  the  constitution  of  1870.  The  constitution  of  1848  (article  9,  section 
5),  provided  that  the  corporate  authorities  of  counties,  townships,  school  dis- 
tricts, cities,  towns  and  villages  could  be  vested  with  the  power  to  levy  taxes 
for  corporate  purposes.  The  court  held  that  the  enumeration  of  certain  munici- 
palities prevented  the  General  Assembly  from  giving  the  power  of  levying  taxes 
for  corporate  purposes  to  the  corporate  authorities  of  any  municipality  not  In- 
cluded In  the  enumeration.  The  General  Assembly  passed  an  act  establishing 
a  park  district  in  three  adjoining  towns.  The  park  was  to  be  under  the  control 
of  a  board  of  park  commissioners.  In  the  Salomon  case  the  point  was  raised 
that  these  commissioners  could  not  be  given  the  power  to  levy  taxes  for  park 
purposes  because  they  were  not  the  corporate  authoritie.s  of  a  county,  township, 
school  district,  city,  town  or  village.  The  court  took  the  view,  however,  that, 
while  It  was  true  that  only  the  corporate  authorities  of  counties,  townships, 
school  districts,  cities,  towns  and  villages  could  be  given  the  power  to  levy 
taxes  for  corporats  purposes  the  General  Assembly,  in  the  act  under  considera- 
tion, was  not  attem.ptlng  to  confer  a  taxing  power  on  the  park  commissioners 
as  the  corporate  authorities  of  the  park  district,  but  was  conferring  upon  these 
commissioners  as  the  corporate  authorities  for  park  purposes  of  the  towns  in 
which  the  park  district  was  located,  the  power  to  levy  taxes  for  park  purposes. 
And  so,  under  tho  constitution  of  1870,  park  commissioners  may  levy  special 
assessments  and  special  taxes  for  local  Improvements  not  as  the  corporate 
authorities  of  a  park  district  but  as  the  corporate  authorities  for  park,  purposes  of 
the  city,  town  or   village  In  which  the  park  district  is  located. 

38  Van  Nada  v  Goedde,   263  HI.  105    (1914). 


Article  9,   Sections  10,  11  235 

assented.  (S^e  discussion  preceding  subheading  "Corporate  authorities"). 
The  same  rule  applies  as  to  the  corporate  authorities  that  may  be  empowered 
to  levy  special  assessments  and  special  taxes.  They  must  be  elected  by 
the  people  to  be  assessed  or  taxed,  or  selected  in  a  mode  which  has  bee. 
assented  to  by  the  people.'" 

(For  a  statement  as  to  the  corporate  authorities  of  drainage  districts, 
see  discussion  article  4,  sectioji  31,  sub-heading  "Corporate  authorities"). 


Combination  of  methods  to  defray  cost  of  local   improvements. 

A  municipality,  under  a  proper  delegation  of  legislative  authority,  may 
provide  that  the  cost  of  a  particular-  local  improvement  shall  be  met  in 
part  by  general  taxation  and  in  part  by  special  assessments  or  special  taxa- 
tion. But  it  cannot  provide  that  a  part  of  the  cost  shall  be  paid  by  special 
assessments  and  the  remainder  by  special  taxation.  Either  special  assess- 
ments or  special  taxation  may  be  combined  with  general  taxation  in  one 
local  improvement,  but  special  assessments  and  special  taxation  cannot  be 
so  combined."'. 


Exemptions  from  special  assessments  and  special  taxation. 

(See  discufision  article  9,  section   3,   sub-heading   "Special   assessments 
and  special  taxation"). 


Section  1 0.  The  General  Assembly  shall  not  impose  taxes  upon 
municipal  corporations,  or  the  inhabitants  or  property  thereof,  for 
corporate  purposes,  but  shall  require  that  all  the  taxable  property 
within  the  limits  of  municipal  corporations  shall  be  taxed  for  the 
payment  of  debts  contracted  under  authority  of  law,  such  taxes  to  be 
uniform  in  rej>pect  to  persons  and  property,  within  the  jurisdiction 
of  the  body  imposing  the  same.  Private  property  shall  not  be  liable 
to  be  taken  or  sold  for  the  payment  of  the  corporate  debts  of  a  mu- 
nicipal corporation. 


(See  discuj;sion  article  9,  section  9,  subheadings  "Corporate  authori- 
ties" and  "Power  of  General  Assembly  to  impose  taxes  on  municipal  cor- 
porations for  corporate  purposes.") 


Section  11.  No  person  who  is  in  default,  as  collector  or  cus- 
todian of  mor.ey  or  property  belonging  to  a  municipal  corporation 
shall  be  eligible  to  any  office  in  or  under  such  corporation.  The  fees, 
salary  or  compensation  of  no  municipal  officer  who  is  elected  or  ap- 
rsointed  for  a  definite  term  of  office,  shall  be  increased  or  diminished 
during  such  term. 

(See  discussion  article  4,  section  4;  see,  also,  discussion  article  4,  sec- 
tion 21,  subheading,  "Municipal  officers"). 


•^  Givms  V  City  of  Chicag-o,    188    111.   348    (1900). 

'^'Kuehner  v  City  of  Freeport.   143   111.   92    (1892);   see    also,   Palch   v  People, 
99   111.   137    (1881);   City  of  Chicago  v  Brede.   218   111.    528    (1905). 


236  Article  9,  Section  12 

Section  12.  No  county,  city,  township,  school  district,  or  other 
municipal  corporation,  shall  be  allowed  to  become  indebted  in  any 
manner  or  for  any  purpose,  to  an  amount,  including  existing  indebt- 
edness, in  the  aggregate  exceeding  five  per  centum  on  the  value  of 
the  taxable  property  therein,  to  be  ascertained  by  the  last  assess- 
ment for  State  and  county  taxes,  previous  to  the  incurring  of  such 
indebtedness.  Any  county,  city,  school  district,  or  other  municipal 
corporation,  incurring  any  indebtedness  as  aforesaid,  shall  before, 
or  at  the  time  of  doing  so,  provide  for  the  collection  of  a  direct  an- 
nual tax  sufficient  to  pay  the  interest  on  such  debt,  as  it  falls  due, 
and  also  to  pay  and  discharge  the  principal  thereof  within  twenty 
years  from  the  time  of  contracting  the  same. 

This  section  shall  not  be  construed  to  prevent  any  county,  city, 
township,  school  district,  or  other  municipal  corporation,  from  is- 
suing their  bonds  in  compliance  with  any  vote  of  the  people  which 
may  have  been  had  prior  to  the  adoption  of  this  Constitution  in  pur- 
suance of  any  law  providing  therefor. 


In  general.  The  words  "or  other  municipal  corporation",  as  used  in 
this  section,  have  been  held  to  include  a  village  and  a  sanitary  district." 

This  section  consists,  primarily,  of  two  restrictions  upon  the  incurring 
of  municipal  indebtedness.  It  docs  not,  except  as  suggested  below,  restrict 
the  amount,  rate  or  purpose  of  municipal  taxation.  "The  fact  that  a  mu- 
nicipal corporation  is  indebted  up  to  the  constitutional  limit  of  five  per 
cent  does  not  prevent  that  municipality  from  levying  taxes  for  any  lawful 
purpose  within  the  limits  fixed  by  the  laws  governing  such  municipal  cor- 
porations.'"^ It  should  be  borne  in  mind,  however,  that  taxes  levied  to  pay 
the  interest  or  principal*  on  a  municipal  debt  which  is  void  because  in  ex- 
cess of  the  five  per  cent  limitation,  are  themselves  void  because  levied  for  an 
unlawful  purpose.  To  this  extent,  the  section  under  consideration  does 
indirectly  restrict  the  levy  and  collection  of  municipal  taxes.  (See  discus- 
sion subsequent  subheadings,  "What  is  a  debt",  and  "Effect  of  exceeding  five 
per  cent  limitation"). 

(As  to  the  requirements  of  the  second  sentence  of  this  section  with 
reference  to  the  levy  and  collection  of  annual  taxes  to  meet  an  indebted- 
ness, see  discussion  subsequent  subheading,  "Necessity  for  provision  for 
annual  tax"). 


Indebtedness  authorized  before  adoption  of  constitution.  The  pro- 
visions of  the  last  sentence  of  this  section  have  been  held  to  validate  mu- 
nicipal bonds  issued  after  the  adoption  of  the  constitution  of  1870,  in  com- 
pliance with  a  vote  had  prior  to  that  date,  pursuant  to  a  law  providing 
therefor,  even  though,  when  the  bonds  were  issued,  the  municipality  was 
indebted  beyond  the  five  per  cent  limitation,  and  no  provision  had  been 
made  for  the  payment  of  the  principal  and  interest,  by  an  annual  tax. 

In  the  case  of  Mason  v  City  of  Shawneetown,'"'  it  appeared  that  the 
city  charter,  a  special  act  of  18B1,  authorized  the  city  to  borrow  money  for 
the  construction  and  maintenance  of  a  levee.  The  city  submitted  the 
question  of  borrowing  money  for  that  purpose  to  the  people  in  May,  1870, 


«  Village  or  I 'ast  luoline  v  Pone.  22  1  111.  3^'^  (1!)0(>):  Evans  v  Holman.  244 
111.  596  (1910):  Wilson  v  Board  of  Trustees,  133  111.  443  (1890);  People  v  Bowman, 
253    111.    234     (1911). 

"^  People  v  C.  &  T.  P.y.  Co.  223  111.  448  (1906);  People  v  C  &:  A.  Ry.  Co. 
253    111.    191    (1912). 

«77    111.    533    (1875). 


Article  9,  Section  12  237 

and,  upon  a  favorable  vote,  it  issued,  in  1872,  $50,000  worth  of  bonds,  for  a 
levee.  In  1872  the  city  was  so  indebted  that  the  total  indebtedness,  in- 
cluding this  bond  issue,  exceeded  the  five  per  cent  limitation  by  some 
$10,000.  It  was  alleged  that  this  amount  of  these  bonds  was  void  and  that 
the  levy  of  taxes  to  pay  the  principal  and  interest  thereon  should  be  en- 
joined. The  court  held  that  under  the  last  sentence  of  the  section  under 
consideration,  these  bonds  were  exempt  from  the  provision  in  the  first 
sentence  of  the  section,  that  no  municipality  should  become  indebted  to  an 
amount  in  excess  of  five  per  cent  of  the  value  of  the  taxable  property 
therein,  for  the  reason  that  they  had  been  issued  in  compliance  with  a 
vote  had  prior  to  the  adoption  of  the  constitution  pursuant  to  a  law  provid- 
ing therefor — that  law  being  the  city  ordinance,  enacted  under  the  city's 
charter  powers.  (See  discussion  subsequent  subheading,  "Effect  of  ex- 
ceeding five  per  cent  limitation"). 

In  the  case  of  Board  of  Education  v  Bolton,**  the  facts  were  these:  An 
act  of  1865  authorized  school  districts  to  issue  bonds,  upon  a  favorable 
vote  of  the  people.  Such  a  vote  was  had  in  1867.  The  bonds  were  issued 
in  November,  1872.  No  provision  was  made  at  that  time  for  the  levy  or  col- 
lection of  an  annual  tax  to  pay  the  principal  and  interest  thereon  in  twenty 
years,  pursuant  to  the  requirements  of  this  section.  It  was  alleged,  by  the 
defendant  in  an  action  of  debt  upon  the  bonds,  that  for  this  reason  the 
bonds  were  void.  The  court  held  that  under  the  last  sentence  of  this 
section  the  requirement  of  a  provision  for  the  levy  of  an  annual  tax  had  no 
application  where  the  authority  to  create  the  debt  was  conferred  by  a 
vote  had  prior  to  the  adoption  of  the  constitution,  pursuant  to  a  statute 
providing  therefor.  (See  discussion  subsequent  sub-heading  "Necessity 
for  provision  for  annual  tax;"  article  9,  section  8;   separate  section  2.) 


Constitutional  amendments.  The  provisions  of  this  section  have  been 
modified  by  two  constitutional  amendments  embodied  in  section  34,  article 
4,  and  section  13.  article  9  of  the  constitution.  In  the  case  of  Stone  v  City 
of  Chicago,'"'  the  court  was  endeavoring  to  ascertain  whether  the  city's  in- 
debtedness had  reached  the  five  per  cent  limitation  prescribed  by  this 
section.  It  was  alleged  that  world's  fair  bonds  in  the  amount  of  $4,517,000 
should  be  included  for  that  purpose.  The  court  held:  "These  bonds  were 
issued  under  section  13  of  article  9  of  the  constitution  of  1870,  which  section 
was  adopted  as  an  amendment  to  the  constitution  in  the  year  1890.  The 
funds  arising  from  the  sale  of  said  bonds  were  used  in  aid  of  the  World's 
Columbian  Exposition.  At  the  time  the  amendment  was  adopted  the  city 
was  in  debt  beyond  the  constitutional  limit,  and  the  object  of  the  amend- 
ment was  to  confer  upon  the  city  power  to  issue  said  bonds  notwith- 
standing the  constitutional  limit  of  five  per  cent.  It  is,  therefore,  clear 
that  said  bonds  should  not  be  taken  into  consideration  in  determining  the 
amount  of  the  city's  indebtedness  under  the  debt,  limit  of  five  per  cent 
fixed  by  the  constitution."     (See  article  9,  section  13.) 

In  the  case  of  City  of  Chicago  v  Reeves,**^  the  court  was  considering 
the  question  as  to  whether  the  sixth  amendment  to  the  constitution  of  1870, 
(article  4,  section  34),  adopted  in  1904,  violated  the  provision  of  section 
2  of  article  14,  that  "the  General  Assembly  shall  have  no  power  to  propose 
amendments  to  more  than  one  article  of  this  constitution  at  the  same  ses- 
sion." (See  discussion,  article  14,  section  2.)  That  is,  the  court  was 
endeavoring  to  ascertain  to  what  extent  the  amendment  modified  the  pro- 
visions of  other  articles  of  the  constitution.  The  court  found  that  the 
amendment  did,  in  effect,  materially  modify  provisions  in  two  ar- 
ticles of  the  constitution,  but  it  held  the  amendment  valid  on  the  ground 
that  thes  modifications  were  necessarily  incidental  to  the  accomplishment 
of  the  purposes  contemplated  by  the  provisions  of  the  amendment.  .(See 
article  4,  section  34.)     The  court  held  that  the  section  under  consideration 

■'-'104  111.   220    (1882). 

45  207   111.   492    (1904);   City  of  Chicago  v  McDonald.   176   111.   404    (1898). 

^220    111.   274    (1906). 


238  Article  9,  Section  12 

had  been  modified  by  this  amendment,  "so  that  the  City  of  Chicago  [should 
a  consolidation  of  the  many  local  governments  embraced  within  the  city 
be  effected],  may  become  indebted  to  an  amount  aggregating  five  percentum 
of  the  full  value  of.  the  taxable  property  within  its  limits  as  ascertained 
by  the  last  assessment,  either  for  state  or  municipal  purposes,  previous  to 
the  incurring  of  such  indebtedness,  instead  of  not  to  exceed  five  percentum 
of  the  value  of  the  taxable  property  therein  to  be  ascertained  by  the  last 
assessment  for  state  and  county  purposes  previous  to  the  incurring  of  such 
indebtedness."  (See  subsequent  subheading,  "Valuation  of  property  used 
in  computing  five  per  cent  limitation" )t  As  a  matter  of  fact,  such  a  con- 
solidation of  the  local  governments  in  Chicago  has  not,  as  yet,  been  ef- 
fected. 


Annexations  of  municipalities.  In  the  case  of  True  v  Davis,*"  it  was 
held  that  the  provisions  of  the  section  under  consideration,  prescribing 
the  limitations  upon  municipal  indebtedness,  do  not  prohibit  the  annexation 
of  two  or  more  cities,  incorporated  towns  or  villages  to  each  other,  pur- 
suant to  statute,  even  though  both  of  the  constituent  municipalities  are  at 
that  time  indebted  beyond  the  five  per  cent  limitation.  This  was  true,  the 
court  said,  because  the  annexation  in  no  way  increases  the  respective 
amounts  of  corporate  indebtedness  originally  incurred  by  the  several  con- 
stituent nfunicipalities. 


Overlapping  municipalities.  "The  constitutional  limitation  upon  the 
extent  of  corporate  indebtedness  applies  to  each  municipal  corporation 
singly,  and  where  one  corporation  embraces,  in  part,  the  same  territory  as 
others,  each  may  contract  corporate  indebtedness  up  to  the  constitutional 
limitation  without  reference  to  the  indebtedness  of  any  other  corporation 
embraced  wholly  or  in  part  within  its  territory."***  In  the  case  of  Wilson 
V  Board  of  Trustees'^  the  facts  were  as  follows:  A  sanitary  district,  whose 
boundaries  were  not  coterminous  with  those  of  any  other  municipal  cor- 
poration, nevertheless  embraced  several  other  municipalities  covering  various 
parts  of  the  same  territory.  One  of  these  municipalities  had  the  power, 
under  its  charter,  to  do  what  the  sanitary  district  had  been  organized  to 
do,  namely,  to  construct  and  operate  channels,  drains,  sewers,  etc.,  for 
sanitary  purposes.  The  aggregate  indebtedness  of  the  several  municipali- 
ties embraced  within  the  sanitary  district,  exceeded  five  per  cent  of  the 
taxable  property  in  the  district.  The  court  held  that  this  was  not  a  case 
where  the  powers  of  an  existing  municipality  were  redistributed  to  a  new 
corporation,  to  evade  restrictions  upon  the  old  corporation.  The  sanitary 
district  was  entirely  distinct  and  separate  from  any  other  municipal  cor- 
poration. The  provisions  of  the  section  under  consideration  applied  to  it 
precisely  as  they  might  to  any  other  municipality.  The  corporate  indebted- 
ness of  other  municipalities  could  not,  therefore,  be  taken  into  considera- 
tion in  determining  the  limit  to  which  the  sanitary  district  might  become 
indebted. 

In  this  connection,  the  case  of  Russell  v  High  School  Board''  should  be 
noticed.  In  that  case  the  facts  were  these:  An  organized  school  district, 
having  a  board  of  education,  had,  pursuant  to  statute,  established  a  high 
school  and  placed  the  administration  thereof  in  a  separate  high  school  board 
of  education.  The  original  board  of  education  retained  control  of  the  grade 
school.  The  high  school  board  proposed  to  issue  bonds  for  the  high  school  in 
an   amount  which   would  raise  the  school   district's    total   indebtedness   to 


*'  133   111.    522    (1889). 

"^People    v    Honeywell,    2.^8    111.    .'?19    (1013). 

"9  133   111.    443    (1890). 

«»212    111.    327    (1904). 


Article  9,  Section  12  239 

seven  per  cent  of  the  value  of  the  taxable  property  In  the  district.  The 
court  held  that  the  mere  creation  of  a  new  administrative  agency  to 
manage  the  high  school  when  the  original  board  of  education  had  ample 
power  to  do  so,  did  not  operate  to  create  a  new  school  district  coextensive 
with  and  superimposed  upon  the  other,  which  could  incur  an  indebtedness 
without  regard  to  that  already  incurred  by  the  district.  The  plan  amounted 
to  a  mere  division  of  the  existing  powers  of  the  school  district  between 
,  two  boards  of  education  in  the  same  district.  The  amount  of  the  debt  which 
exceeded  five  per  cent  of  the  taxable  property  was  void  and,  as  to  that 
the  high  school  board  was  enjoined.  (See  discussion  subsequent  subhead- 
ing, "Effect  of  exceeding  five  per  cent  limitation").  Moreover,  the  court 
said,  that  even  if  it  did  operate  to  create  a  new  school  district,  the 
arrangement  would  merely  have  amounted  to  a  division  and  redistribution 
of  the  powers  of  the  old  district,  within  the  suggestion  made  in  the  Wilson 
case,  to  evade  the  constitutional  restriction  on  municipal  indebtedness,  and 
would,  for  that  reason  be  void. 


Valuation   of   property   used    in   computing  five   per  cent   limitation.     In 

the  case  of  People  v  Hamill,''^  decided  in  June,  1888,  it  was  held  that  the 
basis  for  computing  the  five  per  cent  limitation  upon  municipal  indebted- 
ness under  the  clause  of  this  section  "to  be  ascertained  by  the  last  assess- 
ment for  state  and  county  taxes",  was  the  original  assessment  made  by  the 
local  authorities  and  not  the  equalized  assessed  valuation  as  fixed  by 
the  state  board  of  equalization.  Justice  Magruder  dissented  from  that 
decision,  holding  that  the  assessed  valuation  as  equalized  by  the  state  board 
of  equalization  was  the  basis  contemplated  by  the  constitution.  Five 
months  later.  Justice  Magruder,  speaking  for  the  full  court  in  the  case  of 
Culbertson  v  City  of  Fulton,"'^  decided  in  November  1888,  held,  without 
reference  to  the  earlier  case,  that  it  was  the  equalized  assessed  value 
as  determined  by  the  state  board  of  equalization,  and  not  the  original  as- 
sessment as  made  by  the  local  officers,  that  should  govern  in  computing 
the  five  per  cent  limitation  upon  a  municipality's  indebtedness. 

(By  two  acts  of  1919,  the  state  board  of  equalization  was  abolished  and 
its  powers  conferred  upon  a  state  tax  commission.''^) 

However,  this  does  not  mean  that  it  is  the  full  value  of  the  taxable 
property,  as  thus  equalized,  which  is  to  be  taken  as  the  basis  for  the 
computation  of  the  five  per  cent  limitation.  In  1898,  the  General  Assembly 
passed  an  act  fixing  the  assessed  value  of  taxable  property  as  one-fifth  of  the 
full  value.  In  the  case  of  City  of  Chicago  v  Fishburn,"  the  court  held 
that  the  basis  for  the  computation  of  the  five  per  cent  limitation  was  not 
the  full  value  of  taxable  property,"  but  the  assessed  value,  as  fixed  by  stat- 
ute, namely,  one-fifth  of  the  full  value.  In  1909,  the  assessed  value  was 
changed  from  one-fifth  to  one-third  of  the  full  value.  In  1919,  it  was  raised 
from  one-third  to  one-half.^"'  Accordingly,  the  five  per  cent  limitation  upon 
a  municipality's  indebtedness  is  now  to  be  computed  upon  the  assessed 
value  for  state  and  county  taxes,  that  is,  one-half  of  the  full  value  of  the 
taxable  property  in  the  municipality,  as  equalized  by  the  state  tax  com- 
mission. 


Necessity  for  provision  for  annua!  tax — twenty  year  limitation.  It  will 
be  noted  that  the  section  under  consideration  contains  the  following  pro- 
vision:    "Any  county,  city,  school  district  or  other  municipal  corporation 


•'1  134   111.    666    (1888). 

'"'^27   111.  30    (1888);  Wabash  Ry.  Co.  v  People,  202  111.   9    (1903). 

•'STvaws.    1919,    pp.    9.    718. 

5*189  111.  367    (1901). 

ss  Law.s,  1919,  pp.  727-728.  The  obieot  of  these  changes  since  the  act  of  1898 
has  been  that  of  increasing:  the  borrowing-  powers  of  municipalities.  (See  dis- 
cussion,^  Constitutional    Convention   Bulletin    No.    4,    pp.    289-290). 


240  Article  9,  Section  12 

incurring  any  indebtedness  as  aforesaid,  shall  before  or  at  the  time  of 
doing  so,  provide  for  the  collection  of  a  direct  annual  tax  sufficient  to  pay 
the  interest  of  such  debt  as  it  falls  due,  and  also  to  pay  and  discharge  the 
principal  thereof  within  twenty  years  from  the  time  of  contracting  the 
same."  The  words  "incurring  any  indebtedness  as  aforesaid"  do  not  mean 
"incurring  any  indebtedness  in  excess  of  the  five  per  cent  limitation." 
Rather,  they  mean  "incurring  any  indebtedness  in  any  manner  or  for  any 
purpose  to  an  amount  which,  when  added  to  the  original  debt,  is  still  within 
the  five  per  cent  limitation."  °* 

It  is  not  necessary,  under  this  secti6n,  that  a  direct  annual  tax  sufficient 
to  liquidate  the  debt  within  twenty  years  be  provided  for  in  connection 
with  every  debt,  of  whatever  kind.  The  words  "any  indebtedness"  do  not 
literally  mean  "any  indebtedness."  The  constitution  merely  requires  that 
such  a  tax  be  provided  for  in  connection  with  debts  of  a  fixed  and  absolute 
amount,  which  are  in  the  nature  of  bonded  debts,  that  is,  those  which  bear 
interest  and  fall  due  at  a  fixed  time  or  times  in  the  future.  Thus,  it  is  not 
necessary,  when  a  municipality  purchases  supplies  on  credit  for  the  pur- 
pose of  caring  for  the  poor,  or  when  it  enters  into  a  construction  contract  on 
which  payments  are  to  be  made  monthly  at  the  rate  of  eighty-five  per  cent 
of  the  value  of  the  work  done,  or  when  it  contracts  for  the  use  of  water 
hydrants  at  a  maximum  annual  rental,  that  the  levy  and  collection  of  an 
annual  tax  to  pay  the  interest  and  principal  thereon  within  twenty  years, 
be  provided  for."  The  indebtedness  incurred  in  these  cases  was  not  fixed 
in  amount.  However,  this  rule  does  not  go  to  the  extent  of  defining  the 
kind  of  indebtedness  to  which  the  five  per  cent  limitation  applies.  In  other 
words,  while  the  requirement  of  a  provision  for  an  annual  tax  applies  only 
to  interest  bearing  debts  of  a  fixed  amount,  the  payment  of  which  is  de- 
ferred to  a  definite  time  in  the  future,  the  five  per  cent  limitation  in  the 
first  sentence  of  this  section  applies  to  all  debts  of  whatever  kind.'*  (As  to 
the  obligations  of  a  municipality  which  have  been  held  to  be  the  debts  within 
the  meaning  of  the  terra  "indebtedness,"  as  used  in  the  first  sentence  of  this 
section,  see  discussion  subsequent  subheading,  "What  is  a  debt.") 

Nor  does  the  clause  of  this  section,  "shall  provide  for  the  collection  of 
a  direct  annual  tax,"  mean  that  the  municipality,  at  the  time  of  incurring 
the  debt,  shall  actually  levy  the  whole  amount  of  the  annual  taxes  neces- 
sary to  liquidate  the  debt  in  twenty  years.  The  constitution  merely  re- 
quires that  the  necessary  steps  be  taken,  at  that  time,  for  the  levy  and  col- 
lection of  that  tax  in  subsequent  years.  As  a  matter  of  fact,  under  the  system 
of  taxation  in  force  today,  whereby  the  valuation  of  property  is  ascertained, 
annually,  there  cannot  be  a  levy  at  one  time  of  taxes  to  be  collected  each 
year  for  a  period  of  years  in  advance.  No  valuation  of  property  for  the 
whole  period,  is  then  available.'*  (See  discussion  subsequent  subheading, 
"What  is  a  debt"). 

The  annual  tax  provided  for  must  be  clearly  sufficient  to  pay  the  interest 
as  due  and  also  the  principal  within  twenty  years.  For  example,  a  statute 
was  held  to  contravene  this  section  which  directed  the  municipality  to  pro- 
vide for  the  levy  and  collection  of  an  annual  tax,  the  proceeds  of  which  were 
first  to  be  used  for  other  purposes,  the  residue  only,  an  indeterminate 
amount,  being  available  to  pay  a  particular  bonded  indebtedness.''*  Simi- 
larly, a  special  act  prescribing  the  charter  powers  of  a  city  was  held  void 
which  limited  to  a  clearly  insufficient  rate  and  amount,  the  taxes  to  be  de- 
voted to  payment  of  the  interest  and  principal  on  the  corporate  indebted- 


'^"Citv  of  Kast  St.  Louis  v  P^oplp  124  Til.  QE^  (1888"):  East  St.  Louis  v 
Amy,  120  U.  S.  r.00  (1886);  Town  of  Kankakee  v  McGrew.  178  111.  74  (1899):  Petti- 
bone  v  West  Chicag^o  Park  Commissioners.  215  111.  304  (1905);  but  see  City  of 
Carlyle  v  C.   W.   L.   &  P.   Co..   140   111.    445    (1892). 

"Town  of  Kankake  v  McGrrw.  178  111.  74  (1899);  County  of  Coles  v  Goeh- 
rlnpT.  209  111.  142  (1904);  City  of  Danville  v  Danville  Water  Co.,  180  111.  235 
(1899). 

^«B.    &   O.    S.   W.    Rv.    Co.    V   People.    200    111.    F41    (1903). 

'^'Hodfzres  V  Crowley.  186  111.  305  (1900);  Pettibone  v  West  Chicago  Park 
Commissioners.    215    111.    304    (1905). 

c»  Pettibone   v  West   Chicago   Park   Commissioners,    215    111.    304    (1905). 


Article  9,  Section  12  241 

ness.^^  However,  in  both  of  these  cases,  the  constitutional  provision  was 
held  to  be  so  self-executins  as  to  supplant  the  provisions  of  these  statutes. 
That  is,  this  provision,  without  the  aid  of  further  legislation,  constituted 
a  direction  to  the  municipality  to  provide  for  the  necessary  tax.  Moreover, 
this  constitutional  provision  is  so  self-executing  as  to  be  independent  of 
the  statutes  regulating  the  passage  by  municipalities  of  appropriation  and 
tax  levy  ordinances.*'^  For  example,  where  the  municipal  ordinance  incur- 
ring the  indebtedness  and  providing  for  the  levy  and  collection  of  the 
necessary  tax,  was  passed  after  the  enactment  of  the  appropriation  and  tax 
levy  ordinances,  it  was  held  that  the  ordinance  was  passed  pursuant  to  the 
constitutional  mandate,  and  that,  irrespective  of  the  appropriation  and  tax 
levy  ordinance,  it  constituted  a  binding  direction  to  the  proper  officers  to 
levy  and  collect  the  tax  for  that  year,  even  though  the  statute  requiring 
the  tax  to  be  embodied  in  the  appropriation  and  tax  levy  ordinances  had 
not  been  complied  with.*'^  Similarly,  where  the  regular  tax  levy  ordinance 
embodying  this  tax  was  held  void,  because  invalidly  enacted,  the  earlier 
ordinance  providing  for  the  levy  and  collection  of  the  debt  tax  was  held  to 
constitute  sufficient  authority  for  the  tax  officers  to  levy  and  collect  the 
tax  in  that  year."* 

The  second  sentence  of  this  section  merely  restricts  the  term  of  a 
bonded  indebtedness  incurred  by  a  municipality  to  a  maximum  period  of 
twenty  years.  It  does  not  require  such  bonds  to  be  issued  for  a  period  of 
exactly  twenty  years,  nor  does  it  prohibit  the  incurring  of  a  debt  for  any 
period  less  than  twenty  years,  such  as,  for  instance,  a  period  of  one  year.*^ 
Moreover,  this  sentence  does  not  require  all  bonded  debts  incurred  by  a 
municipality  to  be  paid  within  twenty  years,  so  as  to  preclude  the  possibil- 
ity of  refunding  the  debt  at  the  end  of  that  period.  The  debt  continues 
to  exist  if  not  paid  off  within  twenty  years.  If,  at  the  end  of  that  period, 
the  provision  first  made  for  the  payment  of  the  debt  with  funds  collected 
from  annual  taxes  has  proved  to  be  insufficient  to  pay  the  whole  debt,  the 
constitution  does  not  prohibit  the  issuance  of  new  bonds  to  take  up  and  re- 
fund the  original  debt.  There  must,  however,  be  express  statutory  author- 
ity for  refunding  a  debt  in  this  manner.  That  is,  the  second  sentence  of 
this  section  establishes  a  policy  which  requires  the  liquidati  )n  of  bonded 
debts  within  twenty  years  from  the  date  thereof,  to  such  an  extent  as  to 
prohibit  the  refunding  of  such  debts  in  the  absence  of  express  statutory 
authorization.^'^ 


What  is  a  debt.  The  first  sentence  of  the  section  under  consideration 
provides  that  no  municipality  "shall  be  allowed  to  become  indebted  in  any 
manner  or  for  any  purpose  to  an  amount,  including  existing  indebtedness, 
in  the  aggregate  exceeding  five  per  centum  on  the  taxable  property  therein 
.  "  This  note  discusses  the  general  question  as  to  what  constitutes 
an  indebtedness  within  the  meaning  of  this  provision. 

Accrued  interest,  which  is  due  and  payable,  is  a  debt  and  must  be 
computed  in  determining  whether  the  city  is  indebted  beyond  the  five  per 
cent  limitation  prescribed  by  this  section.  However,  interest  not  yet  due 
is  not  a  debt,  for  this  purpose.  For  example,  in  the  case  of  Goodwine  v 
County  of  Vermilion,"  the  facts  were  these:  Bonds  were  to  be  issued  by 
the  county,  the  principal  of  which  did  not  cause  the  total  indebted- 
ness of  the  county  to  exceed  the  five  per  cent  limitation.  However, 
if  the  total  interest  that  would  fall  due  during  the  life  of  the  debt  were 


"iCity  of  East  St.  Louis  v  People,  124  111.  655  (1888):  East  St.  Louis  v 
Amy.    120   U.   S.   600    (1886). 

«3  People  V  Wabash  Ry.  Co..   281  111.  382    (1917). 

63  People  V   Sandberg-  Co.,   282   111.    245    (1918). 

6*  People    V    Day.    277    111.    543    (1917). 

"5  People   V    Bowman,    253    111.    234    (1911). 

««Kane  v  City  of  Charleston.  161  111.  179  (1896);  Hamilton  County  v  Bank, 
157  Fed.    19    (1907);   Coquard  v   Villapre  of   Oquawka,    192   111.    355    (1901). 

67  271    111.    126    (1915);    Stone    v   City   of   Chicago,    207    111.    493    (1904). 


242  Article  9,  Section  12 

added  to  the  principal,  the  aggregate  sum  of  principal  and  interest  would 
exceed  the  constitutional  limitation.  It  was  urged  in  a  proceeding  to  en- 
join the  issuance  of  the  bonds,  that  for  this  reason  the  proposed  indebted- 
ness was  void  under  the  provisions  of  the  section  under  consideration.  The 
court  held  that  the  interest  payable  during  the  life  of  the  loan  did  not,  at 
the  time  of  issuing  the  bonds,  constitute  a  debt  which  should  be  computed 
in  ascertaining  whether  the  county's  pre-existing  indebtedness,  in  addition 
to  that  created  by  the  bond  issue,  would  exceed  the  Ave  per  cent  limitation. 

Judgments  against  a  municipality,  which  have  not  been  satisfied,  are 
debts  which  must  be  computed  in  ascertaining  whether  the  constitutional 
limitation  upon  municipal  indebtedness  has  been  exceeded.*^ 

Neither  special  assessment  warrants,  payable  out  of  funds  collected 
by  a  municipality  from  special  assesments  for  public  improvements,  nor 
the  obligations  of  a  municipality  to  pay,  out  of  funds  raised  by  general 
taxation  for  the  current  year,  its  share  of  special  assessments 
for  public  benefits  from  public  improvements,  constitute  debts  which  are 
to  be  computed  in  ascertaining  the  amount  of  municipal  indebtedness.  *® 
(As  to  special  assessments  in  general  see  discussion  article  9,  section  9, 
subheading  "Special  assessments  and  special  taxation  for  local  improve- 
ments".) 

A  right  of  action  against  a  city  does  not  create  a  debt  so  as  to  be 
rendered  void  by  the  fact  that  the  city  is  indebted  beyond  the  five  per  cent 
limitation.  For  example,  in  a  suit  against  a  city  for  damages  on  account 
of  personal  injuries  caused  by  a  defective  sidewalk,  the  court  held:  "In 
the  trial  of  a  case  like  this,  we  are  of  opinion  that  the  city  cannot  raise 
the  question  as  to  whether  it  is  already  indebted  to  an  amount  in  excess 
of  the  constitutional  limitation.  It  was  not  error  to  exclude  proof  on  that 
subject."™  In  the  case  of  City  of  Chicago  v  Cement  Co.,"^  the  court  was  con- 
sidering the  constitutionality  of  the  mob  law  of  1887,  under  which  the 
municipality  was  made  liable  for  three-fourths  of  the  damages  caused  to 
private  property  by  mobs.  It  was  urged  that  this  act  violated  the  section 
under  consideration,  but  the  court  held:  "By  no  possible  construction 
can  it  be  held  to  create  a  debt  against  municipal  corporations  of  any  par- 
ticular amount,  much  less  of  an  amount  exceeding  the  constitutional  limit. 
We  certainly  cannot  be  asked  to  assume  that  every  county  and  city  in  the 
State  would  be  compelled  to  become  indebted,  by  its  enforcement,  to  an 
amount,  including  existing  indebtedness,  exceeding  five  percentum  on  the 
value  of  its  taxable  property,  in  order  to  justify  a  holding  against  the 
validity  of  the  act.  Whether  or  not  the  city  of  Chicago  was.  at  the  bringing 
of  this  suit,  indebted  beyond  that  amount  is  wholly  immaterial  in  de- 
termining the  constitutionality  of  the  law.  That  question  could  only  arise, 
if  at  all,  upon  a  proceeding  to  collect  the  judgment.  But  aside  from  the 
foregoing  considerations,  as  already  intimated,  we  do  not  think  the  act, 
in  any  proper  sense,  creates  a  debt  against  cities  and  counties.  It  does  no 
more  than  provide  that  under  certain  circumstances  they  shall  be  liable  to 
owners  for  property  destroyed  by  mobs  and  riots.  Owners  seeking  to  re- 
cover for  such  loss  must,  as  in  any  other  case,  make  out  their  cause  of 
action  by  alleging  and  proving  all  the  facts  prescribed  by  the  several 
sections  of  the  act.  This  right  of  action  is  no  more  a  debt  against  a  city 
or  a  county  than  is  the  right  of  recovery  against  such  municipality  for  any 
other  wrong  or  injury." 

In  the  case  of  Chicago  v  P.  C.  C.  &  St.  L.  Ry.  Co.'-  it  appeared  that  a 
judgment  had  been  recovered   by  the   city   against  a   railroad   for   certain 


««City  of  rhicago  v  McDonald,  176  111.  404  (1898);  Stone  v  City  of  Chicago, 
207   111.   493    (1904). 

«9  Jacksonville  Ry.  Co.  v  Citv  of  Jacksonville,  114  111.  562  (1885);  Stone  v 
City  of  Chicago,  207  111.  493  (1904);  Pooplo  v  Honeywell,  258  111.  319  (1913); 
Lobdell    V    City    of   Chicago.    227    111.    218    (1907). 

■^9  City   of  Bloomington  v   Perdue,   99   111.   329    (1881). 

71  178    111.    372     (1899). 

"244    111.    220    (1910). 


Article  9,  Section  12  243 

damages.  Thereafter,  an  ordinance  was  passed,  providing  for  the  elevation 
of  the  tracks  of  this  railroad.  In  consideration  of  the  elevation  of  the  road 
and  or  the  making  of  various  public  improvements,  the  city,  by  an  ordinance, 
released  the  railroad  company  from  iis  liability  on  the  judgment.  It  was 
objected  that  this  oidinance  contravened  the  section  of  the  constitution  now 
under  consideration.  The  court  held:  "The  connection  between  section  12 
of  article  9,  limiting  indebtedness,  and  the  ordinance  in  question,  is  not 
apparent.  The  plaintiff  proved  that  the  city  of  Chicago  was  indebted  in 
excess  of  five  per  cent  of  its  taxable  property,  and  the  argument  seems  to 
be,  that  if  the  defendant  had  not  been  released  and  had  paid  into  the  treas- 
ury the  damages  on  account  oi  the  viaducts,  the  city  would  have  had  that 
Eiuch  more  money  and  the  municipal  expenses  would  have  been  reduced  by 
that  amount.  We  are  unable  to  see  that  the  provision  has  anything  to  do 
with  this  matter,  or  that  a  compromise  by  which  some  of  the  assets  were 
given  up  in  consideration  of  benefits  received  amounted  to  incurring  an 
indebtedness." 

Where  a  city  already  indebted  beyond  the  five  per  cent  limitation  con- 
tracts for  the  furnishing  of  supplies  or  services  to  the  city  during  a  period  of 
years,  for  which  payments  are  to  be  made  by  the  city  upon  the  furnishing 
of  the  supplies  or  the  rendering  of  the  services,  in  fixed  periodical  install- 
ments, it  has  been  held  that  the  city  thereby  becomes  indebted  in  violation 
of  the  provisions  of  this  section,  at  the  time  of  the  making  of  the  contract. 
This  is  so  because  whether  it  is  the  liability  to  pay  the  aggregate  of  the  in- 
stallments or  the  liability  to  pay  each  one  as  it  falls  due  that  constitutes  an 
indebtedness,  the  city  is  powerless  to  incur  any  indebtedness  whatsoever." 
However,  where  a  city  is  not  indebted  beyond  the  five  per  cent  limitation, 
and  it  is  not  shown  that  the  obligation  to  pay  a  particular  installment  will 
increase  the  city's  indebtedness  beyond  the  constitutional  limitation,  even 
though  the  obligation  to  pay  the  aggregate  of  the  installments  will  have  that 
effect,  it  has  been  held  that  the  city  does  not,  at  the  time  of  entering  into 
the  contract,  thereby  become  indebted  in  violation  of  the  provisions  of  the 
section  under  consideration.  The  actual  liability  to  pay  in  such  a  case  ac- 
crues upon  the  rendering  of  the  service  or  the  furnishing  of  the  supplies,  at 
the  date  the  installment  is  due,  and  not  before.  Therefore,  the  amounts 
that  might  become  due  and  payable  at  future  installment  dates  do  not,  at 
the  time  of  entering  into  the  contract,  constitute  a  debt  of  the  city,  within 
the  meaning  of  the  constitution.'^ 

The  question  as  to  when  the  issuance  of  anticipation  warrants,  by  a 
municipality  indebted  beyond  the  five  per  cent  limitation,  to  meet  current 
expenses,  is  prohibited  by  the  section  under  cDusideration,  seems  to  have 
arisen  for  the  first  time  in  the  case  of  City  of  Springfield  v  Edwards.'^  It  was 
urged  by  counsel  in  this  case  that  "when  liabilities  are  created  [by  munici- 
palities] and  appropriations  are  made,  which  are  within  the  limits  of  the 
revenue  accruing  to  meet  them,  they  are  not  debts  within  the  meaning  of 
the  prohibition  of  the  constitution;  and  that  temporary  loans  are  not,  when 
v/ithin  the  limits  of  the  revenue  expected  to  be  realized."  This  contention 
was  supported  by  cases  from  other  states.  The  court  held:  "These  cases 
maintain  the  doctrine  that  revenues  may  be  appropriated  in  anticipation  of 
their  receipt,  as  effectually  as  when  actually  in  the  treasury;  that  the 
appropriation  of  moneys  when  received  meets  the  services  as  they  are 
rendered,  thus  discharging  the  liabilities  as  they  arise,  or  rather  anticipat- 
ing and  preventing  their  existence.  We  are .  only  prepared  to  yield  our 
assent  to  the  rule  recognized  by  the  authorities  referred  to,  with  these 
qualifications:  First,  the  tax  appropriated  must,  at  the  time,'  be  actually 
levied;  second,  by  the  legal  effect  of  the  contract  between  the  corporation 


73  Prince  v  City  of  Quincy.  lon  111.  138  (1883);  105  111.  215  (1883);  128  111. 
443  (1889):  City  of  Chicago  v  McDonald,  176  111.  404  (1898);  City  of  Chicago 
V  Galpin,   183   111.  399    (1899);   Schnell  v  City  of  Rock   Island,   232   111.   89    (1908). 

"^^East  St.  Louis  v  East  St.  Louis  L.  G.  E.  &  C.  Co.,  98  111.  415  (1881); 
City  of  Chicagro  v  McDonald,    176   111.   404    (1898). 

'5  84  111.   626    (1877). 


H4:  Article  9,  Section  12 

and  the  individual,  made  at  the  time  of  the  appropriation,  the  appropriation 
and  issuing  and  accepting  of  a  warrant  or  order  on  the  treasury  for  its  pay- 
ment, must  operate  to  prevent  any  liability  to  accrue  on  the  contract  against 
the  corporation.  The  principle,  as  we  understand  it  is,  that  in  such  a  case 
there  is  no  debt,  because  one  thing  is  simply  given  and  accepted  in  ex- 
change for  another.  When  the  appropria^tion  is  made  and  the  warrant  or 
order  on  the  treasury  for  its  payment  is  issued  and  accepted,  the  trans- 
action is  closed  on  the  part  of  the  corporation — leaving  no  future  obligation, 
either  absolute  or  contingent,  upon  it,  whereby  its  debt  may  be  increased. 
But  until  a  tax  is  levied,  tliere  is  npthing  in  existence  which  can  be  ex- 
changed; and  an  obligation  to  levy  a  tax  in  the  future,  for  the  benefit  of  a 
particular  individual,  necessarily  implies  the  existence  of  a  present  debt  in 
favor  of  the  individual  against  the  corporation,  which  he  is  lawfully  entitled 
to  have  paid  by  the  levy.  If  the  making  of  the  appropriation  and  issuing 
and  accepting  a  warrant  for  its  payment  does  not  have  the  effect  of  reliev- 
ing the  corporation  of  all  liability,  or,  in  other  words,  if  it  incurs  any  li- 
ability thereby,  it  must,  manifestly  incur,  either  absolutely  or  contingently, 
a  debt.  Where  a  warrant  or  order,  payable  from  a  specific  appropriation  of 
a  tax  levied  but  not  yet  collected,  is  accepted  in  exchange  for  services  ren- 
dered or  to  be  rendered,  or  for  material  furnished  or  to  be  furnished,  so 
that  there  is,  in  fact,  but  the  exchange  of  one  thing  for  another,  the  duty 
remains  for  the  proper  oflicers  to  collect  and  pay  over  the  tax  in  accordance 
with  the  appropriation — but,  obviously,  for  any  failure  in  that  regard,  the 
remedy  must  be  against  the  officers  and  not  against  the  corporation,  for, 
otherwise,  a  contingent  debt  would,  in  this  way,  be  incurred  by  the  cor- 
poration." These  principles  have  been  adhered  to  in  a  number  of  subse- 
quent decisions.  The  principal  difficulty  has  been  that  of  the  application  of 
these  principles  to  particular  fact  situations.  The  rule,  however,  does  not 
seem  to  have  been  departed  from.  In  general,  it  may  be  said  that  the  prin- 
cipal defect  in  the  warrants  that  have  been  held  not  to  come  within  the 
rule  and  to  constitute  municipal  debts  which  were  void  because  the  city 
was  previously  indebted  beyond  the  five  per  cent  limitation,  has  been  the  fact 
that  the  warrants  did  not  state  clearly  and  unequivocally  that  they  were  pay- 
able out  of  and  only  out  of  a  particular  fund  derived  from  a  particular  tax  lev- 
ied for  the  year  in  question." 

The  case  of  Hodges  v  Crowley''  is  interesting  in  this  general 
connection.  In  that  case,  the  facts  were  these:  An  act  of  1899  au- 
thorized the  levy  and  collection,  by  counties,  of  an  annual  tax,  of  a  certain 
amount,  for  road  purposes,  during  a  period  of  ten  years.  The  taxes  were  to  be 
levied  in  advance,  for  the  whole  ten  year  period,  on  the  basis  of  the  assessed 
value  of  the  property  in  the  counties,  as  determined  for  the  year  1898,  and 
were  to  be  extended  and  collected  annually.  Anticipation  warrants,  bearing  in- 
terest, were  then  to  be  drawn,  in  1899,  against  the  entire  proceeds  of  the 
taxes  for  the  ten  year  period.  The  court  held  that  under  the  system  of 
taxation  in  force,  whereby  assessments  of  property  for  purposes  of  taxation 
were  made  annually,  there  could  not  be  an  actual  levy  of  taxes  for  ten 
years  in  advance  for  the  reason  that  no  assessed  valuation  for  each  year 
would  be  available.  Therefore,  anticipation  warrants  could  not  be  issued 
against  the  revenue  to  be  realized  during  the  entire  ten  year  period,  for  the 
reason  that  no  valid  levy  of  those  taxes  could  be  made,  as  required  by  the 
rule  enunciated  in  the  case  of  City  of  Springfield  v  Edwards,  in  advance  of 
the  issuance  of  the  warrants.  The  act  was  held  void,  as  an  attempt  to  au- 
thorize counties,  indebted  beyond  the  constitutional  five  per  cent  limitation, 
to  evade  the  provisions  of  the  section  under  consideration,  prohibiting  the 
incurring  of  further  indebtedness.  (See  discussion  preceding  subheading, 
"Necessity  for  provision  for  annual  tax".) 

-^"Law  V  People  87  111.  385  (1877);  Fuller  v  City  of  Chicago,  89  111.  282 
(1878);  Fuller  v  Heath,  89  111.  206  (1878);  Howell  v  City  of  Peoria,  90  111.  104 
(1878);  Commissioners  of  Highways  v  Jackson,  165  111.  17  (1897);  Schnell  v 
City   of   Rock   Island,    232   111.    89    (1908);    Booth   v  Opel,    244    111.    317    (1910). 

"186  111.  305  (19C0);  Pettibone  v  West  Chicago  Park  Commissioners,  215 
111.    304    (1905). 


Article  9,  Section  12  ^45 

A  question  somewhat  distinct  from  that  relating  to  anticipation  war- 
rants is  that  as  to  when  a  city,  which  is  indebted  beyond  the  five  per  cent 
limitation,  incurs  a  debt  within  the  prohibition  of  this  section,  by  the  is- 
suance of  certificates,  warrants  or  bonds  for  the  payment  of  which  property, 
funds  or  taxes  belonging  to  or  due  to  the  city,  are  pledged. 

In  the  case  of  City  of  Joliet  v  Alexander,^^  the  facts  were  as  follows: 
The  city  was  indebted  in  excess  of  the  five  per  cent  limitation.  It  owned  a 
system  of  waterworks,  which  yielded  an  annual  income.  Pursuant  to  an 
act  of  1899,  it  was  about  to  borrow  $240,000  to  enlarge  the  waterworks  sys- 
tem, by  the  issuance  of  interest  bearing  certificates  of  indebtedness.  These 
certificates  were  to  be  paid  out  of  the  proceeds  or  income  from  both  the  old 
and  the  enlarged  waterworks,  and  from  no  other  fund.  The  loan  was  to  be 
secured  by  a  mortgage  of  both  the  old  and  the  new  system.  A  taxpayer 
sought  to  enjoin  the  proposed  transaction  on  the  ground  that  the  city's  in« 
debtedness  would  thereby  be  increased  in  violation  of  the  provisions  of  the 
section  under  consideration.  The  court  held  that  because  the  city  owned 
both  the  existing  waterworks  and  the  established  income  derived  therefrom, 
because  that  income  was  to  be  taken  for  the  payment  of  the  certificates,  and 
because  the  old  waterworks  could  be  taken  therefor  in  the  event  of  the 
foreclosure  of  the  mortgage,  the  transaction  constituted  a  debt  of  the  city, 
which,  being  in  excess  of  the  constitutional  five  per  cent  limitation,  was 
void.  The  city  was,  accordingly,  enjoined  from  proceeding  with  the  trans- 
action. 

A  slightly  different  situation  was  presented  in  the  case  of  Village  of 
East  Moline  v  Pope.'^  The  village  was  indebted  beyond  the  five  per  cent 
limitation.  It  did  not  own  a  waterworks  system.  To  procure  the  construc- 
tion of  such  a  system,  the  village  was  about  to  issue  interest  bearing  bonds 
in  the  sum  of  $35,000,  payable  out  of  the  income  to  be  derived  from  the  sys- 
tem when  constructed,  and  also  out  of  a  special  annual  tax  to  be  levied  and 
collected  for  the  purpose.  It  was  held  that  inasmuch  as  the  bonds  were 
payable  out  of  the  special  tax,  should  the  income  from  the  waterworks,  when 
constructed,  be  insufficient,  the  transaction  constituted  a  debt  of  the  village. 
Since  that  debt  would  be  in  excess  of  the  five  per  cent  limitation,  and 
therefore  void,  the  village  was  enjoined  from  proceeding  with  the  arrange- 
ment. 

In  both  of  these  cases,  however,  it  was  suggested  that  "what  is  said 
relative  to  mortgaging  property  owned  by  the  city  or  pledging  its  existing 
income  is  not  intended  to  apply  to  a  mortgage  purely  in  the  nature  of  a 
purchase  money  mortgage,  payable  wholly  out  of  the  income  of  property 
purchased  or  by  resort  to  such  property.  This  is  not  a  case  where  there  is 
no  obligation  of  the  city  except  the  performance  of  a  duty  in  the  creation 
and  management  of  a  fund,  and  where  the  waterworks,  upon  paying  for 
themselves,  will  become  the  property  of  the  city.  The  reasoning  in  Winston 
V  Spokane,  41  Pac.  Rep.  888,  cannot  be  applied  to  a  case  like  this,  and  could 
only  apply  to  property  or  a  fund  which  the  city  never  had,  where  the  prop- 
erty is  to  be  paid  for  by  its  own  earnings  without  imposing  any  further 
liability  on  the  city."  In  the  Village  of  East  Moline  case,  it  was  said  that 
"in  the  case  at  bar  it  is  manifest  that  if  nothing  but  the  income  from  the 
waterworks  was  pledged  or  could  be  reached  to  satisfy  the  principal  and 
interest  of  the  bonds  the  case  would  be  within  the  meaning  of  the  language 
last  quoted,  but  here  revenue  of  the  village  to  be  obtained  by  general 
taxation  to  the  extent  of  one  cent  on  the  dollar  of  taxables  must  be  applied 
to  the  payment  of  this  indebtedness  of  the  income  from  the  waterworks 
proves  insufficient  to  satisfy  it."^° 

An  important  case  in  this  connection  is  that  of  Lobdell  v  City  of  Chi- 
cago.^^     In  that  case  it  appeared  that  the  city  was  indebted  almost  to  the 


'8194    111.    457     (1902):    Sohnell    v    Citv    of    Rock    Island,    232    111.    89    (1908); 
Leonard    v    Citv    of   Metropolis.    278    111.    287    (1917). 

7^224   111.    ise    (1906):   Holmsren   v   City   of  Moline.    269    111.    248    (1915). 
s<»See   Kvans    v   Holman,    244    111.    596    (1910). 
^1227   111.   218    (1907). 


246  Article  9,  Section  13 

five  per  cent  limitation.  It  proposed,  pursuant  to  statute,  to  acquirt^ 
the  street  railway  system.  To  finance  this  project  the  city  was  about  to 
issue  $70,000,000  of  street  railway  certificates,  bearing  interest,  secured  by  a 
mortgage  of  the  system  to  be  acquired  and  of  the  franchise  right  to  use  the 
streets  for  street  railway  purposes,  for  twenty  years.  These  franchises  were 
then  yielding  some  $400,000  a  year  in  license  fees.  The  certificates  were  to 
be  payable  out  of  the  income  to  be  derived  from  the  street  railway  system, 
and  from  no  other  fund.  A  taxpayer  sought  to  enjoin  the  city  from  pro- 
ceeding with  the  transaction.  The  injunction  was  sustained.  The  court 
said:  "If  all  that  is  proposed  to  be  done  in  this  case  is  to  pledge  the  prop- 
erty, and  its  income,  which  is  purchased  with  the  proceeds  of  said  street 
railway  certificates  when  issued  and  sold  to  secure  the  payment  of  said 
certificates,  then,  under  the  doctrine  of  Winston  v  Spokane,  41  Pac.  Rep. 
888,  which  has  been  approved  in  the  City  of  Joliet  v  Alexander  and  Village 
of  East  Moline  v  Pope,  sui)ra,  there  would  be  no  indebtedness,  within  the 
constitutional  inhibition,  created  by  the  issue  and  sale  of  said  street  railway 
certificates  and  the  execution  of  said  trust  deed  or  mortgage,  as  against  the 
city."  The  court  held,  however,  that  although  the  city  was  not  directly 
liable  on  the  certificates,  its  property,  namely,  the  franchise  rights  in  the 
streets  and  the  license  fees  derived  therefrom,  as  well  as  the  railway  sys- 
tem, could  be  taken  to  satisfy  the  claims  due  on  the  certificates,  in  the 
event  of  the  foreclosure  of  the  mortgage.  For  that  reason,  the  transaction 
created  a  debt  of  the  city.  In  view  of  the  fact  that  the  proposed  indebted- 
ness would  exceed  the  five  per  cent  limitation,  the  city  was  enjoined  from 
proceeding  in  the  premises. 

Effect  of  exceeding  five  per  cent  limitation.  Several  cases  have  arisen 
involving  the  question  as  to  whether  a  debt  incurred  by  a  municipality  not 
theretofore  indebted  beyond  the  five  per  cent  limitation,  in  such  an  amount 
as  to  extend  the  city's  aggregate  indebtedness  beyond  that  limitation,  was 
void  as  a  whole  or  only  as  to  the  excess.  These  cases  have  been  proceed- 
ings to  prevent  the  collection  of  taxes,  either  by  injunction  or  by  objections 
to  applications  for  tax  judgments,  for  the  payment  of  the  interest  and  the 
principal  on  the  debt  which  exceeded  the  five  per  cent  limitation.  It  was 
held  that  it  was  only  the  amount  of  the  indebtedness  by  which  the  limitation 
was  exceeded  that  was  void.  As  to  that  amount  the  collection  of  taxes  was 
prevented.  The  portion  of  the  indebtedness  within  the  limitation  and  the 
taxes  levied  therefore,  however,  were  held  valid.**-  It  should  be  noted,  in 
this  connection,  that  the  incurring  of  an  indebtedness  which  would  have  the 
effect  of  increasing  a  municipality's  aggregate  indebtedness  beyond  the  five 
per  cent  limitation,  has,  in  a  number  of  cases,  been  enjoined.  This  has  been 
because  the  proposed  transaction,  as  a  whole,  represented  an  attempt  to 
violate  the  provisions  of  the  constitution,  even  though  only  the  excess  would 
actually  be  void.*'' 

(See  discussion  preceding  subheadings,  "In  general",  and  "What  is  a 
debt".) 

(For  a  discussion  of  the  question  as  to  when  a  municipality  may  be 
estopped  to  deny  the  validity  of  bonds  issued  in  excess  of  the  five  per  cent 
limitation,  see  Dillon,  Municipal  Corporations,  Fifth  Edition,  section  905, 
and  following.) 


Section  13.     The  corporate  authorities  of  the  city  of  Chicago 
are  hereby  authorized  to  issue  interest-bearing  bonds  in  said  city  to 

82Culbertson  v  City  of  Fulton.  127  111.  30  (1888);  City  of  Chicago  v  Mc- 
Donald. 176  111.  404.  at  p.  414.  (1898);  B.  &  O.  S.  W.  Ry.  Co.  v  People,  200  111. 
541    (1903);   Wabash   Ry.    Co.    v    People.    202    111.    9    (1903). 

s^'Rus-sell  V  High  School  Board  212  111.  327  (1904);  Lobdell  v  City  of  Chl- 
cago,  227  111.  218.  (1907);  Evans  v  Holman,  244  111.  596  (1910);  Holmgren  v 
City   of  Moline,    269   111.    248    (1915). 


Article  9,  Section  13  217 

an  amount  not  exceeding  five  million  dollars,  at  a  rate  of  interest 
not  to  exceed  five  per  centum  per  annum,  the  principal  payable 
within  thirty  years  from  the  date  of  their  issue,  and  the  proceeds 
thereof  shall  be  paid  to  the  treasurer  of  the  World's  Columbian  Ex- 
position, and  used  and  disbursed  by  him  under  the  direction  and 
control  of  the  directors  in  aid  of  the  World's  Columbian  Exposition, 
to  be  held  in  the  city  of  Chicago  in  pursuance  of  an  act  of  Congress 
of  the  United  States :  Provided,  that  if,  at  an  election  for  the  adop- 
tion of  this  amendment  to  the  constitution,  a  majority  of  the  votes 
cast  within  the  limits  of  the  city  of  Chicago  shall  be  against  its  adop- 
tion, then  no  bonds  shall  be  issued  under  this  amendment.  And  said 
corporate  authorities  shall  be  repaid  as  large  a  proportionate  amount 
of  the  aid  given  by  them  as  is  repaid  to  the  stockholders  on  the  sums 
subscribed  and  paid  by  them,  and  the  money  so  received  shall  be 
used  in  the  redemption  of  the  bonds  issued  as  aforesaid :  Provided, 
that  said  authorities  may  take,  in  whole  or  in  part  of  the  sum  coming 
to  them,  any  permanent  improvements  placed  on  land  held  or  con- 
trolled by  them :  And  provided  further,  that  no  such  indebtedness 
so  created  shall  in  any  part  thereof  be  paid  by  the  State,  or  from  any 
State  revenue,  tax  or  fund,  but  the  same  shall  be  paid  by  the  said 
city  of  Chicago  alone.  ^^ 

(See  discussion  article  9,  section  12,  subheading,  "Constitutional  amend- 
ments".) 

s*  This  section  was  added  by  the  fifth  amendmcsnt  to  the  constitution.     The 

amendment    was    proposed    by    a  resolution    of    the    general    assembly    in    1890. 

It  Avas  ratified  by  the  voters  on  November  4,  1890,  and  proclaimed  adopted  on 
November   29   of  the  same   year. 


ARTICLE  X— COUNTIES 


Section  1.  No  new  county  shall  be  formed  or  established  by 
the  General  Assembly,  which  will  reduce  the  county  or  counties,  or 
either  of  them,  from,  which  it  shall  be  taken,  to  less  contents  than 
four  hundred  square  miles ;  nor  shall  any  county  be  formed  of  less 
contents ;  nor  shall  any  line  thereof  pass  within  less  than  ten  miles 
of  any  county  seat  of  the  county  or  counties  proposed  to  be  divided. 

"The  object  of  this  section  is  to  prevent  the  reduction  of  large  counties 
to  small  ones,  and  also  to  prevent  the  running  of  new  county  lines  too  near 
county  seats  already  established.'" 

The  Question  has  arisen  whether  the  ten  mile  limit,  prescribed  in  the 
last  clause  ot  this  section,  is  to  be  measured  from  the  county  buildings,  or 
from  the  boundaries  of  the  municipality  which  has  been  established  as  the 
county  seat.  The  Attorney  General  has  rendered  an  opinion,  based  upon 
decisions  of  courts  in  other  states,  that  the  ten  miles  is  to  be  measured  from 
the  boundaries  of  the  municipality.  But  the  limits  of  the  county  seat  will 
not  expand  as  the  particular  municipality  expands.  The  boundaries  of  the 
county  seat  are  the  limits  of  the  municipality  at  the  time  the  city  is  estab- 
lished as  a  county  seat." 


Section  2.  No  county  shall  be  divided,  or  have  any  part 
stricken  therefrom,  without  submitting  the  question  to  a  vote  of  the 
people  of  the  county,  nor  unless  a  majority  of  all  the  legal  voters  of 
the  county,  voting  on  the  question,  shall  vote  for  the  same. 


Section  3.  There  shall  be  no  territory  stricken  from  any 
county,  unless  a  majority  of  the  voters  living  in  such  territory,  shall 
petition  for  such  division;  and  no  territory  shall  be  added  to  any 
county  without  the  consent  of  the  majority  of  the  voters  of  the 
county  to  which  it  is  proposed  to  be  added.  But  the  portion  so 
stricken  off  and  added  to  another  county,  or  formed  in  whole  or  in 
part  into  a  new  county,  shall  be  holden  for,  and  obliged  to  pay  its 
proportion  of  the  indebtedness  of  the  county  from  which  it  has  been 
taken. 


Under  the  Constitution  of  1848  it  was  held  that  an  act  of  the  General 
Assembly  consolidating  two  counties  was  in  violation  of  provisions  similar 


1  People  v  Marshall,   12  111.  391    (1851). 

2  Report  Attorney   General,    1908,   p.    706. 

249 


250  Article   10,   Section  4 

to  those  contained  in  this  section,  and  in  section  2  of  this  article,  since  no 
petition  was  filed  and  no  election  held  to  authorize  such  a  consolidation.^* 
For  the  same  reason  it  has  been  held  that  an  act  of  the  General  Assembly, 
ostensibly  settling  disputed  county  boundaries,  but  in  reality  striking  land 
from  one  county  and  adding  it  to  another,  was  invalid.* 

The  question  has  arisen  whether,  in  forming  a  new  county,  composed  of 
parts  of  two  established  counties,  the  petition  must  be  signed  by  a  majority 
of  the  voters  living  in  each  of  the  parts  proposed  to  be  consolidated.  The 
Attorney  General  has  suggested  that,  in  the  absence  of  authorative  con- 
struction, it  would  be  advisable  to  have  the  petition  signed  by  the  majority 
of  the  voters  living  in  each  section.^ 

The  term  "majority  of  the  voters  of  the  county"  is  interpreted  to  mean 
a  majority  of  those  voting  at  the  election  at  which  the  vote  is  taken.  (See 
discussion  article  10,  section  4.) 


Section  4.  No  county  seat  shall  be  removed  until  the  point  to 
which  it  is  proposed  to  be  removed  shall  be  fixed  in  pursuance  of 
law,  and  three-fifths  of  the  voters  of  the  county,  to  be  ascertained  in 
such  manner  as  shall  be  provided  by  general  law,  shall  have  voted  in 
favor  of  its  removal  to  such  point ;  and  no  person  shall  vote  on  such 
question  who  has  not  resided  in  the  county  six  months,  and  in  the 
election  precinct  ninety  days  next  preceding  such  election.  The 
question  of  the  removal  of  a  county  seat  shall  not  be  oftener  sub- 
mitted than  once  in  ten  years,  to  a  vote  of  the  people.  But  when  an 
attempt  is  made  to  remove  a  county  seat  to  a  point  nearer  to  the 
center  of  the  county,  then  a  majority  vote  only  shall  be  necessary.*^ 


Under  a  similar  provision  of  the  constitution  of  1848  it  was  held  that 
an  act  of  the  General  Assembly  attempting  to  remove  a  county  seat  from 
one  place  to  another,  without  a  vote  of  the  people  of  the  county  affected, 
was  void.'' 

The  Supreme  Court  has  pointed  out  that  this  section  of  the  constitution 
contemplates  the  passage  of  a  law  authorizing  an  election  and  prescribing 
the  time,  place,  manner  of  conducting  and  determining  the  result  thereof 
and,  without  such  a  statute,  there  can.be  no  removal  of  a  county  seat  under 
this  section.**  (See  Kurd's  Revised  Statutes  1917,  Chap.  34,  Sec.  93.)«  The 
Supreihe  Court  has  also  said  that  the  power  given  to  the  General  Assembly 
to  provide,  by  general  law,  for  an  election  under  this  section,  does  not  give 
the  General  Assembly  the  power  to  prescribe  that  women  and  aliens  may 
vote  upon  all  propositions  for  the  removal  of  county  seats.'^  Since  this  elec- 
tion is  a  constitutional  election  only  the  electors  prescribed  by  article  7, 
section  1  may  vote.  (See  discussion  article  7,  section  1,  subheading,  "Wo- 
man suffrage";  article  8,  section  5.) 


s  People    v   Marshall,    12    111.    391    (1851). 

*Rock   Island    County   v    Sage.    88    111.    582    (1878). 

5  Report  Attorney  General  1908,  p.  706. 

8  In  the  section  as  it  originally  appeared  the  words  "a  majority'  ap- 
peared instead  of  the  word  "three-fifths"  and  the  last  sentence  was  omitted. 
Under  the  terms  of  section  12  of  the  schedule  the  word  "three-fifths"  was 
substituted  for  the  words  "a  majority"  and  the  last  sentence  of  the  section 
was  added. 

^People   V    Marshall,    12    111.    391    (1851). 

8  Board   of   Supervisors  v   Keady.    34   111.   293    (1864). 

"See   Villag-e   of   Ridg-way   v   Gallatin   County.    181    111.    521    (1899). 
19  People   v   English,    139    111.    622    (1892). 


Article  10,  Section  5  251 

In  the  constitution  of  1848  the  words,  "voters  of  the  county"  were  not 
modified  by  the  words  "to  be  ascertained  in  such  manner  as  shall  be  pro- 
vided by  general  law"  and  the  question  of  how  the  number  of  voters  in  the 
county  was  to  be  determined  gave  rise  to  some  difficulty.  The  Supreme 
Court  held  that,  in  order  to  give  effect  to  the  constitution  it  must  be  pre- 
sumed that  all  of  the  voters  of  the  county  voted  at  the  election,*^  and  that 
the  fact  that  the  registry  lists  showed  a  larger  number  of  voters  in  the 
county  than  voted  at  the  election  did  not  rebut  this  presumption.^-  But,  if 
the  election  for  the  removal  of  a  county  seat  was  held  at  the  same  time  as 
another  election,  the  greatest  number  of  votes  cast  would  determine  the 
number  of  voters  in  the  county."  However,  the  act  of  1872  prescribes  "The 
number  of  legal  votes  cast  at  any  county  seat  election  held  under  this  act 
shall  be  deemed  and  taken  for  the  purposes  of  such  an  election  prima  facie 
evidence  of  the  number  of  legal  voters  of  that  county  at  that  time  entitled 
to  vote  on  the  question;  but  in  case  it  shall  become  necessary  in  conse- 
quence of  a  contest  of  an  election  held  under  this  act  to  ascertain  the  num- 
ber of  voters  of  the  county  entitled  to  vote  upon  the  question,  the  court  in 
which  the  contest  may  be  pending  may  ascertain  the  number  of  voters  by 
taking  or  causing  to  be  taken,  legal  evidence,  tending  to  show  the  actual 
number  of  the  legal  voters  of  the  county  entitled  to  vote  upon  such  ques- 
tion."" 


Section  5.  The  General  Assembly  shall  provide,  by  general 
law,  for  township  organization,  under  which  any  county  may  organ- 
ize whenever  a  majority  of  the  legal  voters  of  such  county,  voting  at 
any  general  election,  shall  so  determine,  and  whenever  any  county 
shall  adopt  township  organization,  so  much  of  this  constitution  as 
provides  for  the  management  of  the  fiscal  concerns  of  the  said 
county  by  the  board  of  county  commissioners,  may  be  dispensed 
with,  and  the  affairs  of  said  county  may  be  transacted  in  such  man- 
ner as  the  General  Assembly  may  provide.  And  in  any  county  that 
shall  have  adopted  a  township  organization,  the  question  of  contin- 
uing the  same  may  be  submitted  to  a  vote  of  the  electors  of  such 
county,  at  a  general  election,  in  the  manner  that  now  is  or  may  be 
provided  by  law;  and  if  a  majority  of  all  the  votes  cast  upon  that 
question  shall  be  against  township  organization,  then  such  organi- 
zation shall  cease  in  said  county ;  and  all  laws  in  force  in  relation  to 
counties  not  having  township  organization,  shall  immediately  take 
effect  and  be  in  force  in  such  county.  No  two  townships  shall  have 
the  same  name ;  and  the  day  of  holding  the  annual  township  meeting 
shall  be  uniform  throughout  the  State. 


In  general.  Eighty-five  of  the  102  counties  in  Illinois  have  adopted 
township  organization.  It  is  important  in  discussing  township  organization 
to  keep  in  mind  the  fact  that  the  terms  town  and  township  are  used  in  a 
number  of  different  senses.  The  congressional  township  is  a  geographical 
area  used  in  the  land  surveys,  and  as  such  has  no  political  significance. 


"People  V  Warfleld,   20   111.  159    (1858).     See  remarks  of  Mr.   Cody,   Debates 
p.    1239. 

13  People  V  Garner,  47  111.  246  (1868). 
13  People  V  Wiant.  48  111.  263  (1868). 
"Kurd's   Revised    Statutes   1917.   Chap.   34,   sec.   103. 


252  Article  10,  Section  5 

The  school  township  is,  in  most  cases,  but  not  always,  coterminous  with  the 
congressional  township.  The  civil  town,  under  the  township  organization 
law,  is  more  often  different  in  area  from  the  school  and  congressional  town- 
ship. Incorporated  towns  are  usually  villages,  incorporated  before  1870, 
within  the  civil  town;  but  the  incorporated  town  of  Cicero  is  coterminous 
with  the  civil  town,  and  has  the  usu^l  officers  of  the  civil  town  as  well  as 
officers  for  village  functions. 

The  courts  frequently  use  the  term  "town"  to  designate  both  an  in- 
corporated town  and  a  township  under  the  township  organization  law.  In 
the  case  of  People  v  Martin'"  the  Supreme  court  said:  "A  town  organized 
under  the  township  organization  laws  of  the  State  is,  as  before  said,  a  po- 
litical or  civil  subdivision  of  a  county.  It  is  created  as  a  subordinate 
agency  to  aid  in  the  administration  of  the  general  State  and  local  govern- 
ment. The  distinction  between  such  a  town  and  other  chartered  municipal 
corporations  proper,  sometimes  denominated  towns,  is,  that  a  chartered 
town  or  village  is  given  corporate  existence  at  the  request  or  by  the  consent 
of  the  inhabitants  thereof  for  the  interest,  advantage  or  convenience  of  the 
locality  and  its  people,  and  a  town  under  township  organization  is  created 
almost  exclusively  with  a  view  to  the  policy  of  the  State  at  large  for  pur- 
poses of  political  organization  and  as  an  agency  of  the  State  and  county,  to 
aid  in  the  civil  administration  of  affairs  pertaining  to  the  general  admin- 
istration of  the.  State  and  county  government,  and  is  imposed  upon  the  ter- 
ritory included  within  it  without  consulting  the  wishes  of  the  inhabitants 
thereof." 


Organization  of  townships  by  general  law.  The  requirement  that  the 
General  Assembly  shall  provide  for  township  organization  by  general  law 
does  not  mean  that  the  law  must  apply  in  the  same  manner  and  with  equal 
force  to  all  counties  which  have  adopted,  or  which  propose  to  adopt,  that 
form  of  organization.  The  Supreme  Court  has  said  that  "An  act  general  in 
its  terms  and  uniform  in  its  operation  upon  all  persons  and  subject  matter 
in  like  situation  is  a  general  law,  and  one  that  does  not  bring  within  its 
limits  all  persons  and  subject  matter  in  substantially  the  same  situation  and 
circumstances  is  a  special  law.""'  The  General  Assembly  has  a  reasonable 
discretion  to  classify  communities  with  respect  to  township  organization. 
Thus,  it  was  held  that  an  act  was  a  general  law  which  provided  that  county 
boards  might  organize  the  territory  embraced  within  any  city,  having  a 
population  of  3,000  or  over,  into  a  separate  township.'^  On  the  other  hand, 
in  an  earlier  case,  it  was  held  that  an  act  of  1891  was  not  a  general  law 
providing  for  township  organization,  when  it  provided  that  where  incor- 
porated towns  were  coterminous  with  townships,  portions  of  such  towns 
having  a  population  of  not  less  than  1,000  might  form  new  towns  and  town- 
ships upon  petition  and  vote  of  the  people  thereof.  In  this  case  the  Supreme 
Court  said:  "It  is  manifest  the  inhabitants  of  other  like  areas  of  territory 
in  the  state  having  the  specified  population  are  denied  the  privileges  and 
advantages  granted  to  these  particular  ^localities  comprehended  within  the 
act  of  1891  on  the  sole  ground  such  territory  has  not  been  embraced  withfn 
the  limits  of  an  incorporated  town."'^ 

The  General  Assembly  is  also  prohibited,  by  article  4,  section  22,  from 
passing  special  laws  regulating  township  affairs.  (See  discussion,  article  4, 
section  22,  subheading,  "County  and  township  affairs.") 


Abandonment    of    township     organization.     The     constitution     of     1848 
authorized  township  organization  in  any  county  where  the  majority  of  the 


1^78   111.   611    (1899). 

1"  People    v   Martin.    178    111.    611    (1S99). 

"People    V    Grover,    258    111.    124     (1913);    People    v    Haz5U\oocl,    116    111.    3.19 
(1886).      People    v    Brayton.    94    111.    341     (1880). 
"People   v   Martin,    178   111,    611    (1899), 


Article   10,   Section  6  253 

legal  voters,  voting  at  a  general  election,,  should  decide  in  favor  of  that 
form  of  government,  but  there  was  no  express  provision  for  the  abandon- 
ment of  township  organization  by  a  county  which  had  adopted  it.  The 
Supreme  Court  held,  however,  that  the  General  Assembly  could  not  author- 
ize a  township  to  abandon  the  system  by  a  mere  majority  of  those  voting  at 
a  special  election,  and  that  the  same  formalities  must  be  observed  in  abro- 
gating the  system  as  in  its  adoption,  that  is,  it  might  only  be  abandoned  by 
the  vote  of  the  majority  of  the  voters  of  the  county  at  a  general  election/® 
This  construction  was,  in  substance,  adopted  and  carried  forward  into  the 
constitution  of  1870  by  the  insertion  of  the  second  sentence  of  this  section, 
providing  that  the  question  of  continuing  township  organization  may  be  sub- 
mitted to  a  vote  at  a  general  election  "and  if  a  majority  of  all  the  votes  cast 
upon  that  question  shall  be  against  township  organization,  then  such  or- 
ganization shall  cease  in  said  county." 

However,  it  may  be  noted  that  the  vote  required  for  the  abandonment 
of  township  organization  is  not  necessarily  the  same  as  that  required  for 
the  adoption  of  that  form  of  organization.  The  vote  required  for  the  adop- 
tion of  township  government  is  a  majority  of  the  legal  voters  of  the  county 
voting  at  a  general  election;"^  the  vote  required  for  the  abrogation  of  town- 
ship organization  is  a  majority  of  all  the  votes  cast  upon  that  question  at  a 
general  election. 

Under  the  constitution  of  1870,  it  was  held  that  a  statute  giving  the 
county  board  power  to  alter  the  boundaries  of  townships  could  not  be  con- 
strued to  permit  the  county  board  to  consolidate  townships,  sincer  this  con- 
struction would  allow  the  consolidation  of  all  of  the  townships  and  result  in 
the  abandonment  of  the  township  system  without  the  formalities  prescribed 
in  the  constitution.^^  In  another  case  it  was  contended  that  an  act  supplant- 
ing the  township  board  of  review  by  a  county  board  of  review  was  invalid 
because  it  destroyed  township  government  without  any  compliance  with  the 
constitutional  requirements  for  abandoning  that  form  of  organization.  But 
the  court  held  that  this  was  untenable  since  "the  whole  modus  operandi  of 
township  organization  is  committed  to  the  legislature,  the  constitution  pre- 
scribing no  particular  form  or  officers,  and  the  legislature  has  the  power  to 
fix  and  limit  the  powers  of  township  officers  and  to  modify  them  at  will."-^ 


Date  of  annual  town  meeting.  This  section  provides  that  the  day  of 
holding  the  township  meeting  shall  be  uniform  throughout  the  state.  In 
1872  the  General  Assembly  passed  a  general  township  organization  act,  and, 
in  pursuance  of  this  provision  of  the  constitution,  fixed  the  first  Tuesday  in 
April  as  the  date  of  the  annual  township  election.  It  is  held  that  this  act 
repealed  that  portion  of  the  special  charters  of  incorporated  towns  fixing  a 
different  election  day.-"  In  the  case  of  People  v  Hazelwood-*  the  court  inti- 
mated that  an  act  of  the  General  Assembly,  which  fixed  a  different  date  for 
the  election  of  township  officers  in  townships  whose  limits  were  coextensive 
with  cities,  was  a  violation  of  this  provision  of  the  constitution. 


Section  6.  At  the  first  election  of  County  Judges  under  this 
Constitution,  there  shall  be  elected  in  each  of  the  counties  in  this 
State,  not  under  township  organization,  three  officers,  who  shall  be 
styled  "The  Board  of  County  Commissioners,"  who  shall  hold  ses- 
sions for  the  transaction  of  county  business  as  shall  be  provided  by 
law.     One  of  said  commissioners  shall  hold  his  office  for  one  year, 

"People    v    Couchman,    15    111.    142     (1853). 

2»See    People    v    Garner,     47    111.    246     (1868). 

21  People   V   Bravton,    94   111.    341    (1880). 

?•>  People  V  Commissioners  of  Cook  County,   176  111.   576    (1898). 

23  Kelly   V    Gahn.    112    III.    23    (1884). 

2*116    III.    319    (1886). 


254  Article  10,  Sections  7,  8 

one  for  two  years,  and  one  for  three  years,  to  be  determined  by  lot ; 
and  every  year  thereafter  one  such  officer  shall  be  elected  in  each  of 
said  counties  for  the  term  of  three  years. 

(See  article  6,  section  17,  and  schedule,  section  4.) 


Section  7.  The  county  affairs  of  Cook  county  shall  be  man- 
aged by  a  Board  of  Commissioners  of  fifteen  persons,  ten  of  whom 
•rhall  be  elected  from  the  city  of  Chicago,  and  five  from  towns  out- 
side of  said  city,  in  such  manner  as  may  be  provided  by  law. 


The  constitution  (article  4,  section  22)  prohibits  special  legislation  with 
reference  to  the  management  of  county  or  township  affairs.  It  has  been 
held,  however,  that  this  section  constitutes  an  exception  to  that  general  pro- 
vision, and  that  the  General  Assembly  may  pass  special  laws  relating  to 
the  management  of  the  affairs  of  Cook  county.  The  basis  for  this  construc- 
tion is  that  the  county  commissioners  are  to  manage  the  affairs  of  Cook 
county  "in  such  manner  as  may  be  provided  by  law",  thus  implying  a  duty 
on  the  part  of  the  General  Assembly  to  pass  laws  relating  to  the  manage- 
ment of  the  affairs  of  that  county.-^ 

But  the  power  of  the  General  Assembly  to  pass  such  laws  does  not  de- 
prive the  commissioners  of  that  county  of  certain  implied  powers.  Thus  the 
county  commissioners  may  make  appropriations  for  assistant  state's  attor- 
neys, although  there  is  no  legislative  authorization  for  doing  so.^" 

Women  may  not  vote  for  members  of  the  board  of  commissioners  of 
Cook  County.^'  (See  discussion,  article  7,  section  1,  subheadiing,  "Woman 
suffrage"). 

Section  17  of  article  6  provides  that  "no  person  shall  be  eligible  . 
to  membership  in  the  'board  of  county  commissioners'  unless  ...  he 
shall  have  resided  in  the  state  five  years  next  preceding  his  election 
."  In  the  case  of  People  v  McCormick,^  it  was  held  that  this  re- 
quirement of  five  year's  residence  in  the  state,  applied  only  to  the  board  of 
county  commissioners  of  counties  not  under  township  organization,  (see 
article  10,  section  6),  and  had  no  reference  to  the  board  of 
commissioners  of  Cook  County  provided  for  in  this  section.  The 
court  held  that  the  qualifications  for  membership  in  the  board  of  county 
commissioners  of  Cook  County  are  fixed  by  section  6  of  article  7  and, 
since  that  section  makes  one  year's  residence  in  the  state  a  qualification 
for  office,  a  statute  requiring  five  year's  residence  as  a  qualification  for 
membership  In  the  board  of  commissioners  of  Cook  county  was  invalid. 
(See  discussion  article  7,  section  6). 


Section  8.  In  each  county  there  shall  be  elected  the  following 
County  Officers  at  the  general  election  to  be  held  on  the  Tuesday 
after  the  first  Monday  in  November,  A.  D.  1882,  a  County  Judge, 


26  People   V    Day.    277    111.    543    (1917).      And    see   People   v    Commis-sioners    of 
Cook   County,    176    111.    576    (1898);    Morrison   v   People,    196    111.    454    (1902). 

26Nve   V   Foreman,    215    111.    285    (1905);    but   see   Dabnke    v    People,    168    111. 
102    (1897). 

27  People  V  Czarnecki,    265   111.   489    (1914). 

28  261    111.    413     (1914). 


Article  10,  Section  9  255 

County  Clerk,  Sheriff  and  treasurer,  and  at  the  election  to  be  held  on 
the  Tuesday  after  the  first  Monday  in  November,  A.  D.,  1884,  a  Cor- 
oner and  a  Clerk  of  the  Circuit  Court  (who  may  be  ex-officio  re- 
corder of  deeds,  except  in  Counties  having  60,000  and  more  inhabi- 
tants, in  which  Counties  a  Recorder  of  deeds  shall  be  elected  at  the 
general  election  in  1884),  each  of  said  officers  shall  enter  upon  the 
duties  of  his  office,  respectively  on  the  first  Monday  of  December, 
after  his  election,  and  they  shall  hold  their  respective  offices  for  the 
term  of  four  years,  and  until  their  successors  are  elected  and  quali- 
fied: 

Provided,  That  no  person  having  once  been  elected  to  the  office 
of  Sheriff,  or  Treasurer  shall  be  eligible  to  said  office  for  four  years 
after  the  expiration  of  the  term  for  which  he  shall  have  been 
elected.  ^^ 


It  may  be  noted  that  this  section  provides  that  the  sheriff  and  treasurer 
shall  not  be  eligible  to  re-election  "after  the  expiration  of  the  term  for 
which  they  have  been  elected."  The  Attorney  General  has  held  that  a 
person  appointed  by  the  county  board  to  act  as  county  treasurer  until  a 
new  treasurer  may  be  elected,  is  eligible  to  be  elected  to  succeed  himself,*" 
since,  under  this  provision,  only  officers  who  have  been  elected  are  in- 
eligible to  succeed  themselves.  Thus,  one  who  is  elected  to  fill  out  the  two 
year  unexpired  term  of  a  deceased  sheriff  is  in  the  opinion  of  the  Attorney 
General,  disqualilied  for  re-election."-^ 


Sheriff.  In  the  case  of  Dahnke  v  Peoplej^*^  it  was  held  that  since  this 
section  provides  for  a  sheriff  without  any  limitation  of  his  powers  or 
enumeration  of  his  duties,  a  sheriff  such  as  was  known  at  the  common  law 
is  created.  The  General  Assembly  cannot,  therefore,  strip  the  sheriff  of 
his  common  law  prerogatives  and  functions,  such  as  control  of  the  county 
jail  and  court  rooms.  (See  discussion  article  5,  section  1,  subheading, 
"Attorney  General;"  Constitutional  Convention  Bulletin  No.  1,  p.  16. 


Section  9.     The  clerks  of  all  the  courts  of  record,  the  Treas- 
urer, Sheriff,  Coroner  and  Recorder  of  Deeds  of  Cook  county  shall 


2' As  modified  by  the  second  amendment  to  the  constitution.  The  amend- 
ment was  proposed  by  a  resolution  of  tlie  g'eneral  assembly  in  1879.  It  was 
ratified  by  the  voters  on  November  2,  1880,  and  proclaimed  adopted  on  Novem- 
ber   22,    1880.      Section    S    as    originally    adopted    reads: 

"Section  8.  In  each  county  there  shall  be  elected  the  following  county  of- 
ficers: County  Judge,  Sheriff,  County  Clerk,  Clerk  of  the  Circuit  Court,  (who 
may  be  ex  officio  'Recorder  of  Deeds,  except  in  counties  having  sixty  thousand 
and  more  inhabitants,  in  which  counties  a  Recorder  of  Deeds  shall  be  elected 
at  the  general  election  in  the  year  of  our  I^ord  one  thousand  eight  hundred  and 
seventy-two),  Treasurer,  Surveyor  and  Coroner,  each  of  whom  shall  enter  upon 
the  duties  of  his  office,  respectively,  on  the  first  Monday  of  December .  after 
their  election;  and  they  shall  hold  their  respective  offices  for  the  term  of  four 
years,  except  the  treasurer,  sherilT  and  coroner,  who  shall  hold  their  offices 
for  two  years,  and  until  their  successors  shall  be  elected  and  qualified."  See 
People  V  Board  of.  Supervisors,   100  111.  49.5    (1881). 

39  Report  Attorney   General    1912,    p.    696. 

^^1  Report  Attorney  General  1918,  p.  778;  1918,  p.  798;  but  see  Report  At- 
torney General  1910,   p    487. 

33  168    111.    102    (189  r). 


256  Article  10,  Section  9 

receive  as  their  only  compensation  for  their  services,  salaries  to  be 
fixed  by  law,  which  shall  in  no  case  be  as  much  as  the  lawful  com- 
pensation of  a  judge  of  the  Circuit  Court  of  said  county,  and  shall  be 
paid,  respectively,  only  out  of  the  fees  of  the  office  actually  collected. 
All  fees,  perquisites  and  emoluments  (above  the  amount  of  said 
salaries)  shall  be  paid  into  the  county  treasury.  The  number  of  the 
deputies  and  assistants  of  such  officers  shall  be  determined  by  rule 
of  the  Circuit  court,  to  be  entered  of  record,  and  their  compensation 
shall  be  determined  by  the  County  Board. 


In  general.  This  section  provides  that  the  salaries  of  certain  Cook 
County  officers  shall  be  fixed  by  the  General  Assembly.  Under  section  10 
of  this  article,  the  compensation  of  all  county  officers  not  named  in  this 
section,  must  be  fixed  by  the  county  board.  The  Supreme  Court  has  held 
that  the  General  Assembly  has  no  power  to  fix  the  salary  of  those  officers 
of  Cook  County  who  are  not  named  in  this  section,  and  who  are  county  offi- 
cers within  the  meaning  of  section  10  ot  this  article.  Thus,  it  has  been 
held  that  the  board  of  commissioners  of  Cook  County,  who  are  not  men- 
tioned in  this  section,  are  county  officers  within  the  meaning  of  section  10 
of  this  article,  and  that,  therefore,  the  General  Assembly  has  no  power 
to  fix  the  compensation  of  the  members  of  this  board.'^^  (See  discussion 
article   10,  section   10,   subheading,   "County   officers"). 


Deputies  and  assistants.  Although  the  salaries  of  the  officers  named 
in  this  section  may  be  paid  only  from  the  fees  collected  by  their  respective 
offices,  it  has  been  held  that  the  compensation  of  their  deputies  and  as- 
sistants is  not  limited  exclusively  to  such  fees  as  a  source  of  payment* 
The  salaries  of  these  deputies  and  assistants,  however,  must  be  fixed  by 
the  county  board.  Thus,  it  was  held  that  the  Cook  county,  employees'  pen- 
sion fund  was  invalid,  insofar  as  it  applied  to  these  deputies  and  assist- 
ants, because  the  compulsory  payment  of  the  premiums  entailed  a  monthly 
reduction  of  their  salaries  thereby  depriving  the  county  board  of  its 
constitutional   power   to    fix   the    salaries    of    these    employees.'*^ 

It  will  be  noted  that  the  number  of  the  deputies  and  assistants  is  to 
be  fixed  by  the  circuit  court  of  Cook  County.  And  in  the  case  of  People  v 
Day""  the  Supreme  Court  held  that  an  act  requiring  the  county  board  to 
make  an  annual  appropriation  covering  the  salaries  of  these  employees  did 
not  operate  to  deprive  the  circuit  court  of  its  power  to  determine  the  num- 
ber of  deputies  and  assistants  to  be  employed,  since  the  court  may  fix  the 
number  required  prior  to  the  adoption  of  the  appropriation  bill  by  the  county 
board. 


Fees.  This  section  requires  that  all  fees,  perquisites  and  emoluments, 
remaining  after  the  salaries  of  the  respective  officers  are  paid,  be  turned 
over  to  the  county  treasury.  It  has  been  held  that  an  act  authorizing  the 
county  treasurer  of  Cook  County  to  retain  for  his  own  use  two  per  cent 
of  the  amount  of  inheritance  taxes  collected  by  him,  is  in  violation  of  this 
section,'^'  and  that  the  county  clerk  of  Cook  county  may  not  retain  naturali- 
zation fees  collected  by  him.=^^    It  is  clear,  from  the  foregoing,  that  an  act  in- 


33Wulff  V  Aldrich,   124   111.   591    (1888). 
3*  County   of    Cook    v    Hartney,    169    111.    566    (1897). 

"^Helliwell   v  Sweitzer,    278   111.   248    (1917);    but   see   Pooj  le   v   Chetlain.    219 
111.    248    (1906). 

3«277    111.    543    (1917). 

37  Jones    V    O'Oonnell,    266    111.    443    (1915), 

38  People  V  Wltzeman,   268   IH.   508    (1915). 


Article  10,  Section  10  257 

creasing  the  fees  of  these  officers  will  not  amount  to  an  increase  in  their  com- 
pensation during  their  term  of  office."'  (See  discussion  article  5,  section 
23,  subheading,  "Disposition  of  fees  collected  by  officers  in  their  official 
capacities";   article  10,  section  10,  subheading,  "Fees"). 


Section  10.  The  County  Board,  except  as  provided  in  section 
nine  of  this  article,  shall  fix  the  compensation  of  all  county  officers, 
with  the  amount  of  their  necessary  clerk  hire,  stationery,  fuel  and 
other  expenses,  and  in  all  cases  where  fees  are  provided  for,  said 
compensation  shall  be  paid  only  out  of,  and  shall  in  no  instance  ex- 
ceed, the  fees  actually  collected ;  they  shall  not  allow  either  of  them 
more  per  annum  than  fifteen  hundred  dollars,  in  counties  not  ex- 
ceeding twenty  thousand  inhabitants;  two  thousand  dollars  in 
counties  containing  twenty  thousand  and  not  exceeding  thirty 
thousand  inhabitants;  twenty-five  hundred  dollars  in  counties  con- 
taining thirty  thousand  and  not  exceeding  fifty  thousand  inhabit- 
ants; three  thousand  dollars  in  counties  containing  fifty  thousand 
and  not  exceeding  seventy  thousand  inhabitants;  thirty-five  hun- 
dred dollars  in  counties  containing  seventy  thousand  and  not  ex- 
ceeding one  hundred  thousand  inhabitants ;  and  four  thousand  dol- 
lars in  counties  containing  over  one  hundred  thousand  and  not  ex- 
ceeding two  hundred  and  fifty  thousand  inhabitants ;  and  not  more 
than  one  thousand  dollars  additional  compensation  for  each  addi- 
tional one  hundred  thousand  inhabitants :  Provided,  that  the  com- 
pensation of  no  officer  shall  be  increased  or  diminished  during  his 
term  of  office.  All  fees  or  allowances  by  them  received,  in  excess 
of  their  said  compensation,  shall  be  paid  into  the  county  treasury. 


County  board.  The  term  "county  board"  is  a  general  term  used  to 
include  the  board  of  supervisors,  in  counties  under  township  organization, 
the  board  of  commissioners  in  counties  which  have  not  adopted  town- 
ship organization,  and  the  constitutional  board  of  commissioners  of  Cook 
county.  It  was  also  held  to  include  the  county  court,  in  townships  not 
under  township  organization,  in  cases  where,  under  section  4  of  the  sched- 
ule, that  court  survived,  for  a  brief  period,  the  adoption  of  the  constitution 
of  1870."" 


County  offices.  This  section  provides  that  the  county  board  shall  fix 
the  compensation  of  all  county  officers,  except  as  provided  in  section  9. 
This  exception  eliminates  from  the  purview  of  this  section  the  clerks  of 
the  courts  of  record,  the  treasurer,  sheriff,  coroner,  and  recorder  of  deeds 
of  Cook  county. 

Who  are  county  officers  within  the  meaning  of  this  section?  It  has 
been  suggested  that  the  term  "county  officers,"  as  used  in  this  section, 
must  include  those  officers  who  are  named  as  countv  officers  in  section  8 
of  this  article,  viz:  the  county  judge,  county  clerk,  sheriff,  treasurer, 
coroner,    clerk   of   the   circuit   court   and   recorder,  of   deeds."     A   possible 


=53  People  V  Gaulter.  149  111.  39  (1894). 
*oBroadwell  v  People.  76  111.  554  (1875). 
*i  Report  Attorney  Genera]    1908.   p.   321;    1910,   p.   387;    1914,    p.    371. 


258  Article  10,  Section  10 

doubt  as  to  the  accuracy  of  this  suggestion  might  arise  in  the  case  of  the 
county  judge.  That  ofncer  is  named  as  a  judicial  officer  in  article  6,  and  sec- 
tion 32  of  article  6  provides  that  the  salaries  of  all  officers  named  in  that 
article  shall  be  fixed  by  the  General  Assembly,  where  the  salary  of  such 
officers  is  not  otherwise  provided  for  in  that  article.  Furthermore,  sec- 
tion 18  of  article  6  authorizes  the  General  Assembly  to  create  districts  of 
two  or  more  contiguous  counties  in  each  of  which  districts  there  may  be 
elected  a  single  county  judge.  On  the  other  hand  it  must  be  noted  that 
no  such  districts  have  ever  been  created  and  that  the  General  Assembly 
has  never  attempted  to  assume  the  pQwers  exercised  by  the  county  boards 
in   fixing  the  salaries   of  county   judges. 

The  enumeration  of  county  officers  in  section  8  is  not  exclusive.  County 
commissioners  are  not  named  in  section  8,  but,  in  the  case  of  Wulff  y 
Aldrich/-  it  was  held  that  the  county  commissioners  of  Cook  County  were 
county  officers,  whose  compensation  must  be  determined  by  the  county 
board  and  could  not  be  fixed  by  the  General  Assembly. 

On  the  other  hand,  it  can  not  be  said  that  every  officer  who  exer- 
cises jurisdiction  in  and'  for  a  county  is  a  county  officer,  whose  salary  must 
be  fixed  by  the  county  board.  For  example,  it  has  been  held  that  the  county 
superintendent  of  schools  can  not  be  included  within  the  purview  of  this 
section,  since  article  8,  section  5  vests  in  the  General  Assembly  the  power 
to  fix  the  compensation  of  that  officer.'-'  Similarly,  it  has  been  held  that 
the  state's  attorney  can  not  be  deemed  a  county  officer  within  the  language 
of  this  section,  since  his  office  is  created  by  section  22  of  article  6,  and  sec- 
tion 32  of  article  6  provides  that  the  salaries  of  officers  named  in  article 
6  shall  be  fixed  by  the  General  Assembly,  except  as  other^/ise  provided  in 
that  article.''  Apparently  the  probate  judge  cannot  be  deemed  a  county 
officer  within  the  purview  of  this  section  since  the  creation  of  that  office 
is  authorized  by  section  20  of  article  6  and  section  32  of  article  6  appears 
to  require,  as  in  the  case  of  the  state's  attorney,  that  the  salary  of  the 
probate  judge  shall  be  fixed  by  the  General  Assembly. 

The  question  of  whether  statutory  officers  are  county  ofiicers  within  the 
scope  of  this  section  has  given  rise  to  some  discussion.  However,  in  1913, 
in  the  case  of  McAuliffe  v  O'Connell,''  it  was  held  that  by  the  use  of  the 
words  "all  county  officers"  the  framers  of  the  constitution  intended  to  in- 
clude only  officers  who  were  elected  under  the  provisions  of  the  constitu- 
tion, and  this  section,  therefore,  has  no  application  to  offices  created  by  the 
General  Assembly  since  1870.  It  was  held  in  that  case  that  the  General 
Assembly  might  fix  the  salaries  of  the  Cook  county  civil  service  commis- 
sioners, since  such  officers  "were  not  known  to  the  law  at  the  time  the 
constitution  of  1870  was  adopted." 


Fees.  Thii!  section  provides  that  the  county  officers  receiving  fees 
shall  pay  into  the  county  treasury  all  fees  and  allowances  in  excess  of  their 
salaries  and  expenses.  It  may  also  be  noted  that  section  13  of  this  article 
requires  that  all  officers  receiving  fees  shall  make  a  semi-annual  report  of 
such  fees  and  emoluments.  With  few  exceptions,  it  has  been  held  that  all 
sums  receivied  for  official  services,  are  fees.  The  Supreme  Court  has  held 
that  the  following  items  are  fees  within  the  meaning  of  this  section:  money 
received  under  federal  statutes,  by  county  clerks,  as  fees  in  naturalization 
causes;'"  interest  upon  public  money,  received  by  the  county  treasurer ;*' 
money  received  from  the  state,  by  the  sheriff,  for  conveying  prisoners,  and 
amounts  received   by  the  sheriffs,   from  the  counties,   for  Jittendance  upon 


*2  124    111.    591     (1888). 

^sjimison    \    Adams    County,    130    111.    5.58     (1889). 

«Hoyne  v  Danlsch,   264   111.    467    (1914). 

"5  258    111.    186. 

*«  People  v  Witzeman.   268   111.   508    (1915). 

« County  of  Lake  v   Westerfleld,   273   111.    124    (1916). 


'^Ifl    Article  10,  Section  10  259 


court.'*^  The  Attorney  General  has  said  that  the  following  amounts  are 
fees  within  the  meaning  of  this  section:  amounts  received  by  the  county 
clerks  for  issuing  hunters'  licenses;'*  statutory  allowance  of  county  clerks 
for  making  election  returns  r**  statutory  allowance  to  the  county  treasurer 
for  collecting  inheritance  taxes  ;'^  amounts  received  by  the  county  clerk 
as  a  member  of  the  board  of  review  ;'2  amounts  received  by  sheriffs  for 
executing  process  from  foreign  counties,  without  deduction  for  expenses  in 
executing  such  process;"^  amounts  received  by  county  clerk  and  county 
treasurer  as  ex  officio  clerk  and  treasurer  of  drainage  districts;^*  amounts 
received  by  the  county  treasurer,  from  the  state  auditor,  as  mileage,  to 
the  state  capital  and  return,  in  making  final  settlement ;^^  amounts  received 
by  the  county  clerk  for  preparing  assessment  rolls  for  local  improvements;^" 
statutory  commission  of  sheriff  on  sales  of  real  estate."  On  the  other  hand 
the  Attorney  General  has  held  that  the  allowances  received  by  the  sheriff 
from  the  county  for  dieting  prisoners  is  not  a  fee,^*  and  any  amounts  re- 
ceived by  the  county  judee  for  holding  court  outside  of  his  county  need 
not  be  reported  as  a  fee,  since  there  is  no  statutory  authority  for  the  county 
judge  to  receive  any  fees  in  such  a  case.^'  Similarly,  the  Supreme  Court 
has  held  that  the  per  diem  received  by  the  court  bailiffs  need  not  be  ac- 
counted for  as  fees.®" 

(For  similar  provisions  requiring  fees  to  be  paid  into  the  treasury, 
see  discussion  article  5,  section  23,  subheading,  "Disposition  of  fees  collected 
by  state  officers  in  their  official  capacities";  article  10,  section  9,  subheading, 
"Fees") 

Salaries.  It  may  be  noted  that  this  section  also  provides  that  the 
county  officers  receiving  fees  shall  be  paid  their  salary  and  expenses  only 
out  of  the  fees  collected  by  them.  In  the  case  of  Brissenden  v  County  of 
Clay,"  the  Supreme  Court  said  that  any  attempt  on  the  part  of  a  county 
board  to  appropriate  funds  other  than  fees  for  the  salary  or  expenses  of 
these  officers  would  be  ultra  vires  and  void. 

The  amounts  fixed  in  this  section  as  limits  upon  the  compensation  of 
the  officers  in  the  various  classes  of  counties  relate  only  to  personal  com- 
pensation, and  do  not  in  any  way  limit  the  expenses  of  the  officers.®^  It  seems 
clear  that  this  section  fixes  a  maximum  amount  which  the  county  board  may 
not  exceed,  but  places  no  minimum  upon  the  amount  which  the  county 
board  is  required  to  pay  county  officers.  Thus,  the  Supreme  Court  has  held 
that  in  a  county  containing  between  30,000  and  50,000  inhabitants  the  county 
board  may  fix  the  salary  of  the  county  clerk  at  less  than  $2,000.®^ 

Increasing  or  diminishing  compensation  during  term  of  office.  There 
are  several  provisions  of  the  constitution  forbidding  changes  in  the  salaries 
of  officers  during  their  terms  of  office.  All  of  these  provisions  are  con- 
sidered together,  elsewhere  in  this  volume.  It  will,  therefore  be  unneces- 
sary to  discuss  here  th.e  cases  relating  to  changes  in  the  compensation  of 
county  officers  during  their  terms  of  office.  (See  discussion  article  4,  section 
21,  subheading  "County  officers.") 


^s  People  V  Foster.  133  111.  496   (1890). 
*9  Report  Attorney  General   1912,   p.   473 


1912,    p.    511. 
1916,    p.    358. 


Report  Attorney  General   19  00,   p.   208 

'Report  Attorney  General  1912.  p.  226 
53  Report  Attorney  General  1900,  p.  216 
^a  Report  Attorney  General  1900,  p.  216 
^*  Report  Attorney  General  1900,  p.  212 
^"^  Report  Attorney  General  1900,  p.  212 
5"  Report  Attorney  General  1900,  p.  212 
57  Report  Attorney  General  1915.  p.  317 
'^'Report  Attorney  General  1910,  p.  418 
s9'Report  Attorney  General  1912,  p.  478 
™  County  of  I.nSalle  v  Milligan,  143  111.  321  (1892) 
«il61  111.  216   (1896). 

''^  Report    Attorney    General    1910.    p.    370. 
63  Hall    V    Beveridge,    81    111.    128    (1876). 


1912,    p.    462. 


260  Article  10,  Sections  11,  12 

Section  11.  The  fees  of  township  officers,  and.  of  each  class  of 
county  officers,  shall  be  uniform  in  the  class  of  counties  to  which 
they  respectively  belong.  The  compensation  herein  provided  for 
shall  apply  only  to  officers  hereafter  elected,  but  all  fees  established 
by  special  laws  shall  cease  at  the  adoption  of  this  constitution,  and 
such  officers  shall  receive  only  such  fees  as  are  provided  by  general 
law. 


This  section  had  the  effect  of  repealing  all  special  laws  relating  to  the 
fees  of  county  and  township  officers.  Thus  an  act  passed  prior  to  the  adop- 
tion of  the  constitution,  which  provided  for  fees,  for  county  and  township 
officers  in  51  counties  different  from  those  received  by  the  same  officers, 
in  the  other  51  counties  in  the  state,  was  repealed  by  this  section."* 

(For  a  discussion  of  the  question  of  the  application  of  this  section  to 
compensation  as  well  as  fees  of  officers  see  discussion  article  10,  section  12, 
subheading,  "Fees  and  compensation"). 


Section  12.  All  laws  fixing  the  fees  of  State,  County  and 
Township  officers  shall  terminate  with  the  terms,  respectively,  of 
those  who  may  be  in  office  at  the  meeting  of  the  first  General  As- 
sembly after  the  adoption  of  this  constitution;  and  the  General  As- 
sembly shall,  by  general  law,  uniform  in  its  operation,  provide  for 
and  regulate  the  fees  of  said  officers  and  their  successors,  so  as  to  re- 
duce the  same  to  a  reasonable  compensation  for  services  actually 
rendered.  But  the  General  Assembly  may,  by  general  law,  classify 
the  counties  by  population  into  not  more  than  three  classes,  and 
regulate  the  fees  according  to  class. 

•    This  article  shall  not  be  construed  as  depriving  the  General  As- 
sembly of  the  power  to  reduce  the  fees  of  existing  officers. 


In  general.  The  previous  section  having  abolished  special  acts  rela- 
tive to  fees,  and  remitted  the  officers  to  the  general  law  for  the  determina- 
tion of  their  fees,  it  was  intended  that  this  section  should  abrogate  the 
general  laws  with  the  expiration  of  the  term  of  the  officers  then  in  office."' 
In  the  meantime,  the  General  Assembly  was  directed  to  provide  for,  and 
regulate  the  fees  of  those  officers,  by  a  general  law  which  would  reduce 
the  fees  to  a  reasonable  compensation  for  services  actually  rendered. 


Fees  and  compensation.  It  appears  that  sections  11  and  12  were  in- 
tended to  relate  only  to  the  fees,  to  be  charged  the  public,  by  township 
and  county  officers,  as  distinguished  from  the  personal  compensation  of  those 


6*  Board   of  Supervisors   v   Jones.    63    111.    5.31    (1872");   and   see   Union   County 
V    Patton,    63    111.    458    (1872). 

•«  Chance  v  Marion  County,  64  111.   6G    (1872), 


Article  10,  Section  12  261 

officers,  since,  at  least  as  far  as  county  officers  are  concerned,  their  com- 
pensation is  regulated  by  section  10  of  this  article.  This  was  the  under- 
standing in  the  constitutional  convention  of  1869-70.  When  section  11  was 
under  consideration  in  that  convention,  a  delegate  suggested  that  this  sect- 
tion  v/as  inconsistent  with  section  10,  previously  adopted,  since  that  section 
fixed  the  compensation  of  all  county  officers.  Another  delegate  re- 
sponded that  section  11  purported  only  to  regulate  the  fees  to  be  paid  by 
the  public  and  had  no  reference  to  the  salaries  of  officers.  (Debates,  p. 
1366.) 

In  Board  of  Supervisors  v  Johnson'^"  decided  in  1872,  the  Supreme  Court 
took  the  view  that  section  11  related  only  to  fees  to  be  charged  the  public 
and  had  no  application  to  the  personal  compensation  of  officers.  In  that 
case  it  was  contended  that  an  act  of  1867,  fixing  the  compensation  to  be 
paid  the  county  superintendent  of  schools  in  all  counties,  except  Cook  county, 
at  $4  per  day,  was  repealed  by  this  section  of  the  constitution.  But  the 
court  said:  "The  i)er  diem  allowance  to  the  county  superintendent  of  schools 
may  be  regarded  as  'compensation'  and  not  as  'fees'  in  the  sense  in  which 
that  word  is  used  in  the  constitution.  Hence  the  11th  section  cited  can 
have  no  application  and  does  not  operate  to  repeal  the  law  under  which  the 
compensation  of  the  appellee  was  fixed."  In  1912,  the  Attorney  General 
said,  in  speaking  of  section  12:  "This  section  relates  to  fees  and  has  no 
relation  whatever  to  compensation  of  public  officers"." 

However,  it  will  be  noted  that  section  12  provides  that  the  fees  shall 
be  reduced  to  a  "reasonable  con^pensation  for  services  actually  rendered." 
But  it  is  probable  that  these  words  were  used  to  indicate  that  the  fees 
should  be  proportioned  to  the  services  actually  rendered  the  public  and 
have  no  reference  to  the  personal  compensation  of  the  officer  receiving  the 
fee.  This  latter  view  is  strengthened  perhaps  by  the  case  of  Cook  County  v 
Fairbank.""  In  that  case  a  statute  provided  for  a  probate  docket  fee  in 
proportion  to  the  value  of  the  estate  probated.  In  the  particular  case  this 
fee  amounted  to  $1,250.  It  was  held  that  this  fee  was  not  a  reasonable 
compensation  for  services  actually  rendered.  The  court  noted  that  the 
clerk  did  not  receive  the  fee  as  personal  compensation  but  that  it  was 
paid  into  the  county  treasury.  The  court  said:  "Clearly  the  framers  of 
the  constitution  intended  that  the  fees  of  the  probate  courts  in  counties 
of  the  third  class  should  be  based  upon  the  amount,  quality  and  quantity 
of  the  services  performed  by  the  clerks  of  said  courts  and  not  arbitrarily 
fixed  on  the  basis  of  the  value  or  amount  of  the  estate  which  might  pass 
through   those  courts". 

However,  it  must  be  noted  that  the  compensation  of  county  officers 
is,  in  some  degree,  dependent  upon  the  fees,  since  it  is  payable  out  of  the 
fees  collected.  And  in  the  case  of  township  officers,  the  fees  frequently 
roRstitute  the  entire  compensation  of  the  officer.  Again,  it  must  be  noticed 
that  section  11  provides  that  "the  compensation  herein  provided  for 
shall  apply  only  to  officers  hereafter  elected".  One  of  the  delegates  in  the 
constitutional  convention  moved  to  strike  out  the  words  quoted  on  the 
ground  that  the  purpose  of  this  section  was  the  regulation  of  fees  to  be 
charged  the  public,  and  had  no  reference  to  personal  compensation,  but 
this  motion  was  tabled  without  debate. 

In  the  case  of  People  v  Vickroy.'®  decided  in  1915,  the  Supreme  Court 
took  the  view  that  sections  11  and  12  of  the  constitution  regulated  the 
personal  compensation  of  the  officers  as  well  as  the  fees  to  be  charged  the 
public.  In  that  case  a  statute  provided  that  the  town  collector  should  re- 
ceive a  commission  of  two  per  cent  on  all  moneys  collected  by  him  but  that  in 
certain  classes  of  counties  all  excess  of  commissions  and  fees  over  $1,500 


.,„^'"'^4  111.  149  (1872);  and  see  Board  of  Supervisors  v  Christianer,  68  III.  453 
( 1 8  7  .S ) . 

«'Renort  Attorney  General  (1012).  p.  214;  but  see. Report  Attorney  Gen- 
eral   lf)14.   p.   355. 

<•-'  222    111.    578    (1906). 

«»266  111.   384.     See  Hoyne  v  Danisch,   264  TH.   467    (1914). 


262  Article  10,  Section  13 

should  be  paid  into  the  county  treasury,  with  a  proviso  that  the  town  board 
of  auditors  might  reduce  the  compensation  to  an  amount  below  $1,500. 
However,  when  the  town  board  attempted  to  reduce  the  compensation,  the 
Supreme  Court  held  that  this  statute  violated  sections  11  and  12  of  article 
10  of  the  constitution.  The  court  said:  "The  plain  purpose  of  sections  11 
and  12  of  article  10  of  the  constitution  was  that  the  fees  should  be  uniform 
in  order  to  bring  about  a  reasonable  compensation  for  services  actually  rend- 
ered; that  this  uniformity  might  be  based  upon  the  classification  of  counties 
into  three  classes,  regulated  according  to  class.  If  the  argument  of  coun- 
sel for  appellant  on  this  point  is  upheld  it  would  place  such  a  construction 
upon  these  constitutional  provisions *as  would  justify  the  fixing  of  a  differ- 
ent salary  in  the  manner  herein  provided  for  every  town  collector  in  the 
state.  One  town  might  pay  a  very  large  salary  and  another  town  of  the 
same  size  with  the  same  amount  of  work,  immediately  adjoining,  might 
pay  a  very  small  salary.  Such  a  construction  would  effectually  destroy 
all  regulation  of  fees  according  to  the  three  different  classes  of  counties, 
and  also  the  purpose  of  the  constitution  that  various  town  ofRcials  should 
receive  a  reasonable  compensation  for  services  actually  rendered".  The 
court  in  deciding  this  case  made  no  reference  to  the  constitutional  debates, 
nor  did  it  refer  to  the  previous  decision  in  the  case  of  Board  of  Super- 
visors V  Johnson. 

It  thus  appears  that  there  are  directly  conflicting  decisions  of  the 
Supreme  Court  upon  the  question  of  whether  sections  11  and  12  are  limited 
in  their  application  to  the  regulation  of  the  fees  to  be  charged  the  public 
by  county  or  township  officers,  or  whether  those  sections  include  within 
their  purview  also  the  regulation  of  the  personal  compensation  of  town 
and  county  ofl^cers. 


Section  13.  Every  person  who  is  elected  or  appointed  to  any 
office  in  this  State,  who  shall  be  paid  in  whole  or  in  part  by  fees, 
shall  be  required  by  law  to  make  a  semi-annual  report,  under  oath, 
to  some  officer  to  be  designated  by  law,  of  all  his  fees  and  emolu- 
ments. 


"Following  the  directions  of  the  constitution,  the  legislature  enacted 
laws  requiring  every  county  officer  who  shall  be  paid,  in  whole  or  in  part 
in  fees,  to  keep  a  full,  true  and  minute  account  of  all  fees  and  emoluments 
of  his  office,  and  on  the  first  days  of  June  and  December  of  each  year  to 
make  a  return  in  writing  under  oath  to  the  chairman  of  the  county  board,  of 
all  fees  and  emoluments  of  his  office,  of  every  name  and  character,  and 
it  is  made  the  duty  of  the  county  board  to  examine  such  report  and  ascer- 
tain the  balance  of  such  fees,  if  any,  and  order  such  officer  to  pay  over 
such  balance,  if  any,  to  the  county  treasurer".™ 

The  Supreme  Court  has  held  that  this  section  of  the  constitution  re- 
lates to  constitutional  officers  and  does  not  refer  to  statutory  officers. 
Thus  an  act  providing  for  an  official  court  reporter  is  not  invalid  for 
failing  to  require  a  report  of  the  fees  of  the  reporter.'^^  (For  statement  as 
to  what  are  fees,  see  discussion  article  10,  section  10,  subheading,  "Fees"). 


■"Watson,  J.  in  People  v  Witzeman,  268  111.  508   (1915).     See  Hurd's  Revised 
Statutes.   Chap.   53,    Sees.    51-2. 

^People  V  Chetlain.   219  111.  248. 


ARTICLE  XI— CORPORATIONS 


Section  1.  No  corporation  shall  be  created  by  special  laws,  or 
its  charter  extended,  changed,  or  amended,  except  those  for  charit- 
able, educational,  penal  or  reformatory  purposes,  which  are  to  be 
and  remain  under  the  patronage  and  control  of  the  State,  but  the 
General  Assembly  shall  provide,  by  general  laws,  for  the  organiza- 
tion of  all  corporations  hereafter  to  be  created. 


Effect  on  existing  laws.  This  section  did  not  repeal  the  general  law 
relating  to  the  organization  of  private  corporations  in  force  at  the  time  of 
the  adoption  of  the  constitution.  That  law  remained  in  effect  until  repealed 
by  the  General  Assembly.' 


Municipal  corporations.  The  provisions  of  this  section  apply  only  to 
private  corporations.  They  have  no  effect  upon  a  special  law  organizing  a 
municipal  corporation,  such  as  a  drainage  district.-  (As  to  the  restrictions 
upon  special  legislation  relating  to  municipal  corporations,  see  discussion 
article  4,  section  22,  subheading,  "Necessity  for  general  laws  in  other  cases.") 


Amendment  of  charters.  The  Supreme  Court  held  in  the  case  of  Brace- 
ville  Coal  Co.  v  People,'-  that  no  corporate  charter,  under  this  section,  may 
be  either  expressly  or  indirectly  extended,  changed  or  amended  by  the  Gen- 
eral Assembly,  except  "by  general  laws,  applicable  alike  to  all  occupying  like 
circumstances  and  existing  under  the  same  conditions;  and  it  necessarily  fol- 
lows that  special  acts  applying  to  particular  corporations  only,  and  not  to 
the  general  body  of  corporations  created  under  the  act,  would  fall  within  the 
prohibition  of  this  section."  In  this  case,  the  court  held  invalid  as  an  in- 
direct amendment  of  corporate  charters,  by  a  special  law%  an  act  which  re- 
quired certain  types  of  industrial  corporations  to  pay  wages  weekly,  for  the 
reason  that  this  act  restricted  the  original  charter  powers  of  these  corpora- 
tions to  contract  in  and  about  their  business. 


Section  2.  All  existing  charters  or  grants  of  special  or  exclu- 
sive privileges,  under  which  organization  shall  not  have  taken  place, 
or  v/hich  shall  not  have  been  in  operation  within  ten  days  from  the 
time  this  constitution  takes  effect,  shall  thereafter  have  no  validity 
or  effect  whatever. 


^Meeker   v    Chicago    Steel    Co.,    84    111.    276    (1876). 
^Owners  of  Lands  v  People,   113  111.   298   (1885). 

^Braceville  Coal  Co.  v  People,   147  111.  66   (1893);  see,  £  Iso,  People  v  P.  G.  L. 
C.    Co.,    205    111.    482    (1903). 

263 


264  Article  11,  Section  3 

Burden  of  proof.  This  section,  it  was  held,  did  not  operate  to  require 
a  railroad  corporation  created  under  a  special  act  of  1869,  whose  right  to 
exist  as  a  corporation  was  collaterally  attacked  in  1882,  to  prove,  in  the 
lirst  instance,  that  it  had  completed  its  organization  and  complied  with  its 
charter  within  the  time  prescribed  by  this  section.  That  is,  this  consti- 
tutional provision  did  not  change  the  rule  of  evidence  whereby  a  corporation 
is  presumed  to  be  at  least  a  corporation  de  facto  upon  the  introduction  in 
evidence  of  its  charter  and  of  proof  of  the  exercise  of  corporate  powers. 
Non-compliance  with  the  constitution  must  be  proved  by  the  party  attacking 
the  corporate  existence.' 


Additional  privileges.  It  was  held  by  the  federal  circuit  court,  that 
this  section  did  not  invalidate  additional  land  grants  and  special  privileges 
contt-'rred  upon  a  fully  organized  and  operating  railroad  corporation  in  1869, 
even  though  they  enlarged  the  corporation's  original  charter  powers,  when 
these  additional  grants  and  special  privileges  had  not  been  accepted  by  the 
corporation  within  the  time  prescribed  by  the  constitution.^ 


Extent  of  operation.  This  section  does  not  prescribe  the  extent  to 
which  the  charter  must  have  been  in  operation  at  the  date  specified.  It  re- 
quires, only,  that  it  must,  at  that  time,  have  been  in  operation  to  some  ap- 
preciable extent.  So,  where  the  case  was  not  that  of  a  mere  paper  organiza- 
tion, nor  that  of  a  dormant  charter,  but  one  where  there  had  been  an  actual 
organization  and  a  considerable  amount  of  corporate  activity  leading  to  the 
construction  of  a  railroad,  the  completion  thereof  being  hindered  by  injunc- 
tion proceedings,  it  was  held  that  the  charter  was  in  operation  at  the  time 
prescribed  within  the  meaning  of  this  section." 


I 
Section  3.  The  General  Assembly  shall  provide,  by  law,  that 
in  all  elections  for  directors  or  managers  of  incorporated  companies 
every  stockholder  shall  have  the  right  to  vote,  in  person  or  by  proxy, 
for  the  number  of  shares  of  stock  owned  by  him,  for  as  many  per- 
sons as  there  are  directors  or  managers  to  be  elected,  or  to  cumulate 
said  shares,  and  give  one  candidate  as  many  votes  as  the  number  of 
directors  multiplied  by  the  number  of  his  shares  of  stock,  shall 
equal,  or  to  distribute  them  on  the  same  principle  among  as  many 
candidates  as  he  shall  think  fit;  and  such  directors  or  managers 
shall  not  be  elected  in  any  other  manner. 


In  general.  The  purpose  of  this  section  was  to  afford  representation 
to  minority  stockholders.  In  the  opinion  of  the  Attorney  General,  its  pro- 
visions are  mandatory  and  self  executing,  and  are  applicable  alike  to  all  cor- 
porations, including  banks.  No  other  method  may  be  devised  for  the  election 
of  directors.'  The  Attorney  General  has  ruled  that  a  statute  providing  that 
"no  director  shall  be  elected  unless  he  shall  have  received  votes  representing 
at  least  a  majority  of  the  shares''  of  stock  must,  in  view  of  this  section,  be 
construed  to  mean,  not  that  the  directors  must  be  elected  by  a  majority  of  all 


"P.  «&  P.  U.  Rv.  Co.  V  P.  &  F.  Ry.  Co.,  105  111.  110  (1882);  St.  L.  A.  &  T. 
Co.    V   Belleville    Ry.    Co.,    158    III.    390    (189.5). 

estate   v   I.   C.   Ry.   Co.,    33   Fed.    730    (1888). 

"Mc  Cartney  v  C.  &  E.  Ry.   Co..   112   111.   611    (1884). 

^Durkee  v  People.  155  111.  354  (1895);  Report  Attorney  General  1900,  p.  109; 
1910,    p.    209. 


Article  11,  Section  4  205 

votes  cast,  but  that  they  must  receive  at  least  a  number  of  votes  equal  to  a 
majority  of  the  shares  of  stock.  That  is,  where  there  were  300  shares  of 
stock,  9  directors  to  be  elected,  and,  under  the  cumulative  plan  of  voting  pre- 
scribed by  the  constitution,  a  possible  total  of  2,700  votes,  a  director,  to  be' 
elected,  must  receive  at  least  151  votes,  representing  a  majority  of  the 
shares  of  stock,  and  not  necessarily  1,351  votes,  representing  a  majority  of 
the  total  vote  cast.  To  require  otherwise,  would,  in  his  opinion,  defeat  the 
purpose  of  the  constitution,  namely,  that  of  affording  representation  to  mi- 
nority stockholders.''     (See  discussion  article.  4,  sections  7,  8). 


Bondholders.  This  section  prohibits  a  corporation  from  providing,  in 
either  its  by-laws  or  its- corporate  bonds,  that  bondholders  may  vote  for 
directors.  That  privilege  is  confined,  by  the  provisions  of  this  section,  to  the 
stockholders.^ 


Preferred  stockholders.  The  Attorney  General  has  ruled  that  this  sec- 
tion does  not  secure  to  holders  of  preferred  stock  the  privilege  of  voting 
for  directors.  An  arrangement  may  be  entered  into,  in  his  opinion,  so  far 
as  the  constitution  is  concerned,  whereby  the  sole  voting  power  is  confined 
to  holders  of  the  common  stock,  while  the  holders  of  preferred  stock  are 
given  preference  in  the  payment  of  dividends,  but  are  denied  the  power  to 
vote.^'' 


Voting  trusts.  Under  the  provisions  of  this  section,  the  privilege  of 
voting  for  directors  may  only  be  exercised  by  the  stockholders,  in  person 
or  by  revocable  proxy.  They  may  not,  by  contract,  deprive  themselves  of 
that  privilege  by  conferring  an  irrevocable  authority  for  a  period  of  years 
upon  one  minority  stockholder,  as  a  trustee,  to  vote  the  great  majority  of 
the  stock  for  directors,  according  to  his  sole  discretion,  and  without  any 
control  by  ihe  stockholders.  Such  a  contract  is  contrary  to  the  policy  estab- 
lished by  the  constitution,  and  may  be  avoided,  by  the  stockholders  who  were 
parties  thereto." 


Section  4.  No  law  shall  be  passed  by  the  General  Assembly, 
granting  the  right  to  construct  and  operate  a  Street  Railroad  within 
any  city,  town,  or  incorporated  village,  without  requiring  the  con- 
sent of  the  local  authorities  having  the  control  of  the  street  or  high- 
way proposed  to  be  occupied  by  such  Street  Railroad. 


Local  authorities.  The  federal  circuit  court  held  that  the  term  "local 
authorities,"  as  used  in  this  section,  means  the  officers  of  the  municipal 
corporation  elected  by  the  people  or  appointed  in  a  manner  to  which  thev 
have  given  their  consent,  as  for  instance,  the  mayor  and  common  council 
of  a  city."  (See  discussion  article  9,  section  9,  subheading,  "Corporate 
authorities.") 


Municipal    control.     The    Supreme    Court    has    held    that    this    section 
'merely   means    that   the   constitution   has   conferred    upon   the   city    power 


"Report  Attorney  General  1908,  p.  679. 

»Durkee    v    People,    1.5.5    111.    354    (1895). 
"•Report    Attorney    General    1916.    p.     164. 
'1  I.uthy   V   Roam,    270   111.   170    (1915). 
'2  Potter  v  C    &  E.  S.  Ry.  Co..   158  Fed.  521    (1908). 


266  Article  11,  Section  5 

to  determine  whether  street  railways  shall  be  operated  upon  its  streets, 
and  if  so,  upon  what  streets.  To  this  extent,  and  no  further,  the  constitu- 
tion has  committed  to  the  city,  the  control  of  the  operation  of  street  rail- 
ways in  its  streets."'"  While,  in  granting  its  consent  to  the  use  of  its 
streets  by  street  railways,  the  city  may  impose  such  reasonable  conditions 
as,  in  its  discretion,  the  public  welfare  may  require,  such  as  an  annual 
license  fee  for  each  car  or  an  annual  mileage  tax,'^  (see  discussion  article 
9,  section  1,  subheading,  "License  fees"),  nevertheless,  this  power  of  the 
city  to  impose  such  conditions  is  subject  to  the  paramount  power  of  the 
state  to  regulate  public  utilities.  (Sea  discussion  article  2,  section  2;  article 
13,  sections  1,  7.)  For  example,  in  the  case  of  C.  &  S.  T.  Co.  v  I.  C.  Ry. 
Co.,"  where  a  city  had  granted  the  use  of  a  street  to  an  interurban  electric 
railway  on  the  condition  that  the  railway  conform  to  the  grade  of  the 
street,  throughout  its  length,  including  the  crossing  of  a  steam  railroad, 
it  was  held  that  the  state,  acting  through  the  railroad  and  warehouse  com- 
mission, could,  for  the  public  safety,  refuse  to  permit  the  crossing  of  the 
steam  railroad  by  the  electric  line  to  be  effected  at  grade.  Similarly,  in 
the  case  of  City  of  Chicago  v  O'Connell,'"  where  an  ordinance  contract, 
entered  into  between  a  city  and  a  street  railway,  specified,  as  the  condi- 
tions of  the  grant  of  permission  to  use  the  streets,  regulations  as  to  rates 
of  fare,  transfers,  routing,  equipment,  and  number  of  cars,  it  was  held  that 
these  regulations  could  be  superseded  by  an  order  as  to  the  same  matters 
made  by  the  state,  acting  through  the  public  utilities  commission. 


Section  5.  No  State  Bank  shall  hereafter  be  created,  nor  shall 
the  State  own  or  be  liable  for  any  stock  in  any  corporation  or  joint 
stock  company  or  association  for  banking  purposes,  now  created,  or 
to  be  hereafter  created.  No  act  of  the  General  Assembly  authorizing 
or  creating  corporations  or  associations,  with  banking  powers, 
whether  of  issue,  deposit  or  discount,  nor  amendments  thereto,  shall 
go  into  effect  or  in  any  manner  be  in  force,  unless  the  same  shall  be 
submitted  to  a  vote  of  the  people  at  the  general  election  next  suc- 
ceeding the  passage  of  the  same,  and  be  approved  by  a  majority  of 
all  the  votes  cast  at  such  election  for  or  against  such  law. 


Foreign  banking  corporations.  The  Attorney  General  has  ruled  that 
sections  5  to  8,  inclusive,  of  this  article,  establish  a  public  policy  against 
the  granting  of  permission  to  banking  corporations  existing  under  the  laws 
of  other  states  or  of  foreign  countries,  to  do  business,  through  branch 
banks,  in  Illinois.  In  his  opinion,  the  regulations  prescribed  by  these  sec- 
tions of  the  constitution  could  not  be  effectually  enforced  against  any  but 
Illinois   corporations." 


Validation   of  special   charters.     The   Supreme   Court  held,   in   the   case 
of  People  V  Lowenthal,''*  that  sections  2,  5  and  7  of  this  article  impliedly 


i^Clty  of  Chicago  v  O'Connell,  27S  111.  591  (1917);  (recently  affirmed  by  tne 
United   States   Supreme   Court). 

1*  Byrne  v  Chicago  General  Ry.  Co.,  169  111.  75  (1897);  Chicago  General 
Ky.    Co.,    V   (Mty   of   Chicago,    176    111.    253    (1898). 

"246   111.   146    (1910). 

^«278  111.  591  (1917);  (recently  affirmed  bv  the  United  States  Supreme 
Court);  Public  Utilities  Commission  v  C.  &  W^.  T.  Ry.  Co..  275  111.  555   (1916). 

"Report  Attorney   General    1916,    p.    190. 

18  93    111,    191    (1879). 


Article   11,  Section  5  267 

validated  all  charter  powers  granted  to  banking  corporations  of  deposit  or 
discount,  by  special  acts  which  had  been  enacted  prior  to  1870,  and  which 
had  not  been  submitted  to  the  people,  pursuant  to  article  10,  section  5,  of 
the  constitution  of  1848.  This  was  on  the  assumption  that  the  constitution 
of  1848  require^J  such  acts  to  be  so  submitted.  (See  discussion  following 
subheading.) 


Referendum  requirements.  The  constitution  of  1848  (article  10,  sec- 
tion 5)  contained  the  following  provision:  "No  Act  of  the  General  As- 
sembly, authorizing  corporations  or  associations  with  banking  powers, 
shall  go  into  effect,  or  in  any  manner  be  in  force,  unless  the  same  shall  be 
submitted  to  the  people  at  the  general  election  next  succeeding  the  passage 
of  the  same,  and  be  approved  by  a  majority  of  all  the  votes  cast  at  such 
election  for  and  against  such  law."  This  provision,  the  Supreme  Court  held 
in  the  case  of  People  v  Lowenthal,'*  applied,  so  far  as  original  laws  were 
concerned,  only  to  laws  relating  to  banks  of  issue;  that  is,  banks  having  the 
power  to  issue  bank  notes  or  bills  of  credit.  It  did  not  require  an  act 
creating  a  banking  institution  with  banking  powers  other  than  those  of 
issue,  namely,  the  power  to  accept  deposits  and  to  discount  notes,  to  be 
submitted  to  the  people. 

Moreover,  this  provision  of  the  constitution  of  1848  did  not  require  all 
amendments  to  banking  laws  to  be  submitted  to  the  people.  For  example, 
it  was  held  that  amendments  to  a  banking  law  which  changed  the  mode 
of  assessing  bank  property  for  purposes  of  taxation,  and  whicli  modified  the 
court  procedure  to  be  followed  in  enforcing  the  liability  of  bank  stock- 
holders, did  not  have  to  be  submitted  to  the  people,  for  the  reason  that 
the  subject  matter  of  these  amendments  related  to  revenue  and  judicial 
remedies,  respectively,  and  not  directly  to  banking  functions.-" 

It  will  be  noted,  however,  that  the  section  of  the  constitution  of  1870, 
now  under  consideration,  differs  from  that  quoted  from  the  constitution  of 
1848,  in  that  the  present  constitution  expressly  provides  that  "No  act  of  the 
General  Assembly  authorizing  or  creating  corporations  or  associations,  with 
banking  powers,  wUether  of  issue,  deposit  or  discou7it,  not'  amendments 
thereto,'  shall  be  effective  without  a  vote  of  the  people.  The  words  in 
italics  are  not  to  be  found  in  the  corresponding  section  of  the  constitution 
of  1848.  (As  to  the  present  status  of  banks  of  issue  in  Illinois,  see  dis- 
cussion article  11,  section  7). 

The  Supreme  Court  has  held  that  this  provision  applies  to  an  act  author- 
izing the  creation  of  non-stock  savings  bank  associations  with  powder  to  accept 
deposits  and  to  discount  notes,-^  and  the  Attorney  General  has  suggested  that 
it  might  apply  to  an  act  authorizing  the  creation  of  wage  loan  corporations, 
with  power  to  borrow  money  and  to  make  loans  on  the  security  of  wage  as- 
signments,^^ so  as  to  require  these  acts  to  be  submitted  to  a  popular  vote. 

It  was  held  that  the  term  "amendments  thereto,"  as  used  in  this  sec- 
tiou,  included  an  act  authorizing  corporations,  generally,  including  banks,  to 
change  the  corporate  name,  so  as  to  require  that  act  to  be  submitted  to  the 
people,  for  the  reason  that  it  was  the  means  of  effecting  an  amendment  of  an 
important  part  of  a  bank's  charter.-^ 

(As  to  the  history  of  the  constitutional  regulation  of  banking  in  this 
state,  see  Constitutional  Conventions  in  Illinois,  Second  Edition,  pp.  13,  41- 
42,  141.) 

Methods  of  submission.  The  constitution  requires  that  banking  laws 
submitted  to  the  people  be  submitted  to  a  vote  of  the  people  of  the  state  as  a 

1^93    111.    191     (1879). 

2«Bank  of  Republic  v  County  of  Hamilton,  21  111.  53  (1858);  Smith  v  Bryan, 
34    111.    364     (1864). 

"iReed    v    People.    125    111.    592     (1888). 

2'' Report    Attorney    General    1913,    p.    30. 

^•'Sykes  v  People,  132  111.  32  (1890);  but  see  Kurd's  Revi.sed  Statutes 
1917,  section  17,  chapter  16a. 


268  Article  11,  Section  6 

whole,  and  prohibits  the  submission  of  such  acts  to  the  people  of  particular 
localities,  alone.  As  a  result,  the  General  Assembly  is  without  power  to 
enact  local  legislation  relating  to  banks,^ 

The  constitution  does  not  prescribe  the  manner  in  which  the  voters  of  the 
state  shall  be  aiforded  knowledge  of  the  contents  of  the  provisions  of  a  bank- 
ing law  submitted  for  their  approval.  The  General  Assembly  is,  therefore, 
free  to  prescribe  the  manner  in  which  the  act  submitted  is  described  on  the 
ballots.-" 

The  Attorney  General  has  ruled  that  since  a  referendum  on  banking  laws 
is  required  by  the  constitution,  women  may  not  be  authorized  to  vote  on  such 
a  question.-''  (See  discussion  article  7,  section  1,  subheading,  "Woman  Suf- 
frage.') 

The  submission  of  an  amendment  to  a  banking  law  is  a  constitutional 
step  in  the  legislative  process,  and  the  courts  may  not  determine  the  con- 
stitutionality of  such  a  proposed  law  until  every  step  in  its  enactment  has 
been  taken.  Thus,  in  the  case  of  Spies  v  Byers,-^  it  was  held  that  the  court 
had  no  power,  before  the  act  was  submitted  to  the  people,  to  determine 
whether  the  private  bank  bill  of  1917  had  been  validly  enacted. 


Section  6.  Every  stockholder  in  a  banking  corporation  or  in- 
stitution shall  be  individually  responsible  and  liable  to  its  creditors, 
over  and  above  the  amount  of  stock  by  him  or  her  held,  to  an 
amount  equal  to  his  or  her  respective  shares  so  held,  for  all  its  li- 
abilities accruing  while  he  or  she  remains  such  stockholder. 


Extent  of  liability — provisions  self  executing.  Under  this  section,  the 
liability  of  a  bank  stockholder  for  the  debts  of  the  bank  includes  both  the 
amount  invested  by  him  in  the  stock  of  the  bank  and  a  further  amount, 
equal  thereto,  for  which  he  is  personally  liable,  but  it  is  only  for  the  latter 
sum  that  he  may  be  sued  by  creditors  of  the  bank.  Thus,  if  a  bank  which 
has  a  capital  of  $50,000,  owes  $100,000,  and  is  unable  to  pay  its  debts,  and 
A  owns  $500  worth  of  the  bank  stock,  the  creditors  may  not  only  subject 
the  capital  of  the  bank,  including  A's  $500,  to  the  payment  of  their  claims, 
but  they  may,  in  addition,  since  the  capital  is  insufficient  to  liquidate  the 
debt,  sue  A  personally,  for  $500,  the  amount  of  the  stock  held  by  him.  They 
may  not,  however,  hold  him  personally  liable  for  more  than  that  amount. 
The  constitution  does  not  contemplate  that,  in  addition  to  having  his  share 
of  the  capital  stock  subjected  to  the  payment  of  claims  against  the  bank,  a 
stockholder  shall  also  be  personally  liable  to  creditors  of  the  bank  for  an 
amount  equal  to  twice  the  value  of  the  stock  held  by  him,  as  was  suggested 
in  an  early  case.-** 

This  liability  extends,  however,  only  to  the  obligations  contracted  or  in- 
curred by  the  bank  while  the  stockholder  holds  the  stock,  irrespective  of 
when  those  obligations  mature.  It  does  not  extend  to  obligations  maturing 
or  becoming  payable  while  he  owns  the  stock,  when  the  credit  was  extended 
to  the  bank  prior  to  the  time  when  he  became  a  stockholder.  The  term 
"liabilities  accruing'  does  not  mean  "causes  of  action  accruing."  An  assign- 
ment of  the  stock  does  not  operate  to  release  the  original  stockholder  from 
his  constitutional  liability."" 


="Dupee  V  Swigert.   127  111.  494    (1889). 

=^■5  People   V  La  Salle   treet   Bank.   269   111.   518    (1915). 

»' Report  Attorney  General  1916,  pp.  146,  350. 

-'287    111.    627    (1919). 

28  Golden  v  Cervenka,   278   111.   409    (1917). 

-"Golden   V  (Vrvonka,   278   Til.   409    (1917). 


Article  11,  Section  7  269 

Each  stockholder  is  liable,  to  the  extent  indicated,  by  virtue  of  the 
constitution,  for  all  of  the  debts  of  the  bank.  For  example,  a  section  of  an 
act  was  held  void  which  provided  that  a  claim  against  a  bank  should  be 
apportioned  ratably  among  the  stockholders,  and  that  each  stockholder  should 
be  liable  only  for  his  pro  rata  share  of  the  debt.  However,  in  this  case  the 
court  held  that  the  act  as  a  whole  would  not  be  rendered  incapable  of 
enforcement  by  the  invalidity  of  the  section  referred  to,  for  the  reason 
that:  "The  constitutional  provision  in  regard  to  the  liabilities  of  stockholders 
in  banking  institutions  is  a  self-executing  provision,  and  needs  no  legisla- 
tion to  enforce  it.  Being  a  part  of  the  organic  law,  it  requires  no  popular 
election  to  make  its  effect  more  binding.  No'  banking  Act  can  go  into  oper- 
ation in  this  state  of  which  the  constitutional  provision  in  question  shall 
not  be  a  part.  By  virtue  of  the  inherent  power  of  the  constitution  itself,  such 
provision  is  grafted  into  every  banking  law,  which  is  passed  by  the  legis- 
lature or  submitted  to  the  \otes  of  the  people."^** 


Enforcement.  The  constitutional  liability  of  bank  stockholders  for 
debts  of  the  bank  runs  to  the  creditors,  personally.  It  is  a  several  and 
individual  liability  on  the  part  of  each  stockholder  to  each  creditor,  and  not 
to  the  creditors  as  a  class.  It  is  the  creditors  alone,  individually  or  collec- 
tively, who  can  enforce  the  stockholders'  liability.  The  creditors'  rights 
being  granted  by  the  constitution,  they  cannot  be  restricted  by  the  legislature. 
Therefore,  the  General  Assembly  is  without  power  to  authorize  the  collec- 
tion of  the  debts  due  the  creditors,  and  the  consequent  discharge  of  the 
stockholders  from  liability,  by  a  receiver  appointed  by  a  court,  without  the 
creditors'  consent.^^ 


Minors.  The  Attorney  General  has  ruled  that  the  section  under  con- 
sideration prevents  the  issuance  of  bank  stock  to  a  minor,  for  the  reason 
that  the  privilege  of  a  minor  to  repudiate  his  stock  purchase  is  incompatible 
with  the  unusual  and  absolute  liability  of  bank  stockholders  for  the  debts 
of  the  bank.^- 


Section  7.  The  suspension  of  specie  payments  by  banking  in- 
stitutions, on  their  circulation,  created  by  the  laws  of  this  State, 
shall  never  be  permitted  or  sanctioned.  Every  banking  association 
now,  or  which  may  hereafter  be,  organized  under  the  laws  of  this 
State,  shall  make  and  publish  a  full  and  accurate  quarterly  state- 
ment of  its  affairs,  (which  shall  be  certified  to,  under  oath,  by  one  or 
more  of  its  officers)  as  may  be  provided  by  law. 


Since  1866,  the  federal  government,  by  a  prohibitive  tax,  has  prevented 
the  issue  of  bank  notes  and  bills  of  credit  by  all  banks  other  than  national 
banks.  This,  of  course,  was  known  to  the  framers  of  the  constitution,  in 
1870.  The  provisions  relating  to  banks  of  issue  were  inserted,  however,  to  be- 
come operative  in  case  the  tax  should  be  removed  and  the  issue  of  bank  notes 
and  bills  of  credit  by  state  banks  should  again  become  practicable.^* 


s'Dupee   V   Swigert,    127   111.    494    (1889). 
31  Golden  V   Cervenka,    278   111.   409    (1917). 
•''^'Report    Attorney    General    1918,    p.    77. 
*«  Debates,    pp.    1678-85. 


270  Article  11,  Sections  8-10 

Section  8.  If  a  general  banking  law  shall  be  enacted,  it  shall 
provide  for  the  registry  and  countersigning,  by  an  officer  of  State, 
of  all  bills  or  paper  credit,  designed  to  circulate  as  money,  and  re- 
quire security,  to  the  full  amount  thereof,  to  be  deposited  with  the 
State  Treasurer,  in  United  States  or  Illinois  State  Stocks,  to  be  rated 
at  ten  per  cent,  below  their  par  value ;  and  in  case  of  a  depreciation 
of  said  stocks  to  the  amount  of  ten  per  cent  below  par,  the  bank  or 
banks  owning  said  stocks  shall  be  required  to  make  up  said  defi- 
ciency, by  depositing  additional  stocks.  And  said  law  shall  also  pro- 
vide for  the  recording  of  the  names  of  all  stockholders  in  such  cor- 
porations, the  amount  of  stock  held  by  each,  the  time  of  any  trans- 
fer thereof,  and  to  whom  such  transfer  is  made. 

(As  to  be  present  status  of  banks  of  issue  in  this  state,  see  discussion 
article  11,  section  7.) 


Section  9.  Every  railroad  corporation  organized  or  doing  busi- 
ness in  this  State,  under  the  laws  or  authority  thereof,  shall  have  and 
maintain  a  public  office  or  place  in  this  State  for  the  transaction  of 
Its  business,  where  transfers  of  stock  shall  be  made  and  in  which 
shall  be  kept,  for  public  inspection,  books,  in  which  shall  be  recorded 
the  amount  ol:  capital  stock  subscribed,  and  by  whom ;  the  names  of 
the  owners  of  its  stock,  and  the  amounts  owned  by  them  respec- 
tively; the  amount  of  stock  paid  in  and  by  whom;  the  transfers  of 
said  stock;  the  amount  of  its  assets  and  liabilities,  and  the  names 
and  place  of  residence  of  its  officers.  The  directors  of  every  railroad 
corporation  shall,  annually,  make  a  report,  under  oath,  to  the  Audi- 
tor of  Public  Accounts,  or  some  officer  to  be  designated  by  law,  of 
all  their  acts  and  doings,  which  report  shall  include  such  matters  re- 
lating to  railroads  as  may  be  prescribed  by  law.  And  the  General 
Assembly  shall  pass  laws  enforcing  by  suitable  penalties  the  provi- 
sions of  this  section. 


Corporate  acts  in  other  states.  The  federal  circuit  court  held  that  this 
section  did  not  render  invalid  corporate  bonds  executed  at  the  New  York  of- 
fice of  an  Illinois  railroad  corporation.  The  court  said  that  the  constitution 
"does  not  prevent  the  corporation  from  having  [in  addition  to  its  local  office] 
an  office  beyond  the  limits  of  the  state,  nor  invalidate  the  acts  of  such  cor- 
porations when  performed  out  of  the  state.''^*^ 


Section  10.  The  rolling  stock,  and  all  other  movable  property 
belonging  to  any  railroad  company  or  corporation  in  this  State,  shall 
be  considered  personal  property,  and  shall  be  liable  to  execution  and 
sale  in  the  same  manner  as  the  personal  propel  ty  of  individuals,  and 

3*Hervey  v   I.  M.  Ry.   Co.,   28  Fed.    169    (1884). 


Article  11,  Section  11  271 

the  General  Assembly  shall  pass  no  law  exempting  any  such  prop- 
erty from  execution  and  sale. 


Effect  on  early  decisions.  Prior  to  the  adoption  of  the  constitution  of 
1870,  the  Supreme  Court  had  held  that  the  locomotives,  freight  and  passenger 
cars,  rails,  ties  and  spikes,  belonging  to  a  railroad,  constituted  real  property, 
at  least  for  the  purposes  of  railroad  mortgages.^^'  It  will  be  noted  that  the 
express  provisions  of  the  section  under  consideration  apparently  establish  a 
policy  which  is  the  opposite  of  that  enunciated  by  these  decisions. 


Section  11.  No  railroad  corporation  shall  consolidate  its  stock, 
property  or  franchises  with  any  other  railroad  corporation  owning 
a  parallel  or  competing  line ;  and  in  no  case  shall  any  consolidation 
take  place  except  upon  public  notice  given,  of  at  least  sixty  days,  to 
all  stockholders,  in  such  manner  as  may  be  provided  by  law.  A  ma- 
jority of  the  directors  of  any  railroad  corporation,  now  incorporated 
or  hereafter  to  be  incorporated  by  the  laws  of  this  State,  shall  be  cit- 
izens and  residents  of  this  State. 


Franchises.  The  term  "franchises,"  as  used  in  this  section,  includes 
not  only  the  right  to  exist  as  a  corporation,  but  the  power  to  exercise  the 
right  of  eminent  domain,   as   well.^" 


Consolidations.  The  federal  circuit  court  of  appeals  has  held  that  the 
term  "parallel,"  as  used  in  this  section,  does  not  necessarily  mean  a  line 
which  is  at  all  points  equi-distant  from  the  other.  It  means  railroads  running 
in  the  same  general  direction,  which  are  in  a  position  to  compete  with  each 
other.  Nor,  does  the  term  "consolidation,"  as  used  in  this  section,  necessa- 
rily mean  a  merger  or  the  creation  of  a  new  company  of  a  permanent  na- 
ture. Rather,  that  term  is  used  in  the  sense  of  "union"  and  applies  to 
schemes  to  unite  either  the  stock,  franchises  or  property  of  two  parallel  or 
competing  roads.  In  this  case,  the  court  held  that  this  section  operated  to 
render  void  a  ten  year  lease  of  one  railroad  to  another,  both  being  local 
belt  lines  running  along  various  routes  from  railroad  termini  in  East 
St.  Louis  to  a  series  of  Mississippi  river  ferries.^" 

This  section  does  not  prohibit  the  building  by  one  railroad,  of  another 
and  parallel  track,  to  be  used  in  connection  with  the  original  line  as  a 
double  track  system.  The  second  line  is  not  a  competing  railroad  within 
the  meaning  of  the  constitution.^^ 

This  section  applies,  so  far  as  consolidations  ai:e  concerned,  to  rail- 
roads only.  It  does  not  operate  to  prohibit  the  consolidation  of  parallel 
or  competing  electric  street  railways.^' 


Residence  of  directors.     The  Attorney  General  has  suggested  that,  even 
in  the  absence  of  legislation,  this  section  is  mandatory  and  self  executing 

35  Palmer  v   Forbes,    23    111.    301    (1860);   Hunt   v   Bullock,    23    111.    320    (1860); 
Titus   v    Mabee,    25    111.    257    (1861). 

3«C.   W.   &  I.    Ry.   Co.   V   Dunbar,    95    111.    571    (1880). 

37  B.   St.   K   C.   Ry.   Co.   v  Jarvis,   92   Fed.   735    (1899). 

3SC.  &  M.  E.  Ry.  Co.  v  C.  &  N.  W.  Ry.  Co.,   211  111.   352    (1904). 

s'Venner  v  C.  C.  Ry.  Co.,   258   111.  523    (1913). 


272  Article   11,   Section  12 

as  to  the  residence  requirements  of  railroad  directors.'"  Tlie  Supreme 
Court  held,  however,  in  the  case  of  O.  &  M.  Ry.  Co.  v  People,"  that  these 
requirements  only  apply  to  the  directors  of  Illinois  railroad  corporations, 
and  that  they  did  not  therefore,  apply  to  the  directors  of  a  railroad  cor- 
poration existing  as  the  result  of  a  merger  of  the  stock,  property  and  fran- 
chises, of  Illinois,  Indiana  and  Ohio  corporations,  under  the  laws  of  these 
three  states. 


Section  12.  Railways  heretofore  constructed  or  that  may  here- 
after be  constructed  in  this  State,  are  hereby  declared  public  high- 
ways, and  shall  be  free  to  all  persons,  for  the  transportation  of  their 
persons  and  property  thereon,  under  such  regulations  as  may  be  pre- 
scribed by  law.  And  the  General  Assembly  shall,  from  time  to  time, 
pass  laws  establishing  reasonable  maximum  rates  of  charges  for  the 
transportation  of  passengers  and  freight  on  the  different  railroads  in 
this  State. 


Public  highways.  Under  this  section,  railroads  are  public  highways 
only  in  a  restricted  sense.  They  are  not  public  highways  in  the  sense  of 
public  wagon  roads  upon  which  any  one  may  travel  with  his  own  con- 
veyance. They  are  public  highways  merely  to  the  extent  that  all  persons 
have  an  equal  right  upon  them  for  travel  and  for  the  carriage  of  their 
goods,  in  the  trains  operated  by  the  railroads,  and  to  the  further  extent 
that  the  railroads  are  subject  to  control  by  governmental  agencies  so  far  as 
their  relations  with  the  public  are  concerned. *- 

It  is  the  duty  of  railroads,  under  this  section,  to  carry  both  passengers 
and  freight,  and  a  railroad  incorporated  under  the  laws  of  this  state,  which 
is  engaged  exclusively  in  the  transportation  of  freight,  may  be  compelled, 
by  mandamus,  to  operate  passenger  trains.'^ 

Moreover,  the  rolling  stock  of  a  railroad  being  personal  property  under 
the  provisions  of  section  10  of  this  article,  a  railroad  engaged  in  the 
business  of  switching  and  hauling  the  freight  cars  of  other  railroads,  over 
its  line,  will  under  this  section  be  held  to  the  liabilities  of  a  common  car- 
rier of  those  cars.^^ 


Connecting  tracks.  The  Supreme  Court  has  held  that  connecting  tracks, 
constructed  by  the  shipper,  over  lands  belonging  to  the  shipper,  connecting 
a  coal  mine  or  a  manufacturing  plant  with  the  main  line  of  a  railroad, 
are  not  public  highways  within  the  meaning  of  this  section  and  that  they  are 
not  subject  to  a  public  use.  For  example  it  was  held  that  the  public  had  no 
right  to  use  such  a  track  for  the  shipment  of  supplies  to  a  state  charitable 
institution  located  near  by,  and  that  a  railroad  could  be  enjoined  from 
making  such  a  use  of  the  connecting  track.'^  However,  a  connecting  track 
constructed  by  a  manufacturing  company  in  a  city  street,  under  a  city  or- 
dinance, connecting  its  plant  with  a  railroad  line,  has  been  held  to  be  de- 


^0  Report   Attorney   General    1914,   p.   1224. 

*il23    111.    467    (1888). 

*aT.  P.  &  W.  'Ry.  Co.  V  Pence.  68  111.  52-1  (1873);  Lord  v  City  of  Chicago, 
274    111.    313    (1916). 

"SL.  &  M.  Ry.  Co.  V  People.  222  111.  242  (1906);  People  v  St.  L.  A.  &  T.  H. 
Ry.    Co.,    176    111.    512    (1898). 

^*P.  &  P.  U.  'Ry.  Co.  V  C.  R.  I.  &  P.  Ry.  Co.,  109  111.  135  (1884);  U.  S. 
v  U.  S.  Y.  S.  Co.,  192  Fed.  330   (1912). 

«Koelle  V  Knecht.  99  111.  396  (1881);  Scholl  Bros,  v  P.  &  P  U.  Ry.  Co., 
276   111.   267    (1916);   Kenna  v  C.   H.   &  S.  E.   Ry.   Co.,   284   111.    301    (1918). 


Article  11,  Section  13  273 

voted  to  a  public  use  and  to  be  a  public  highway,  within  the  meaning 
of  the  constitution.'"  The  distinction  seems  to  be  that  in  the  one  case, 
the  track  w^as  laid  by  the  shipper  upon  his  own  property,  for  a  private 
use,  while  in  the  other  case,  the  track  was  built  upon  lands  belonging 
to  the  city  as  an  agency  of  the  public,  and  nothing  appeared  to  indicate 
that  the  track  was  for  the  private  convenience  of  the  shipper.  Moreover, 
the  latter  situation  was  dealt  with  in  cases  relating,  primarily,  to  the 
question  as  to  whether  the  city  could  grant  the  use  of  its  streets  for  other 
than  a  public  use. 


Maximum  rates.  The  Act  of  1907,  fixing  a  maximum  rate  for  railroad 
passenger  traffic  in  Illinois  of  two  cents  per  mile,  was  enacted  pursuant 
to  this  section.  The  constitution  contemplates,  however,  that  laws  estab- 
lishing reasonable  maximum  rates  of  charges  shall  merely  fix  maximum 
rates,  beyond  which  the  railroads  cannot  go  in  fixing  their  charges.  The 
General  Assembly  is  not  precluded,  therefore,  by  having  fixed  a  maximum 
rate,  from  authorizing  the  public  utilities  commission  to  fix  a  rate  for  an 
interurban  electric  railroad  of  less  than  the  maximum  rate  of  two  cents  per 
mile." 


Section  13.  No  railroad  corporation  shall  issue  any  stock  or 
bonds,  except  for  money,  labor  or  property,  actually  received,  and 
applied  to  the  purposes  for  which  such  corporation  was  created ;  and 
all  stock  dividends,  and  other  fictitious  increase  of  the  capital  stock 
or  indebtedness  of  any  such  corporation,  shall  be  void.  The  capital 
stock  of  no  railroad  corporation  shall  be  increased  for  any  purpose, 
except  upon  giving  sixty  days  public  notice,  in  such  manner  as  may 
be  provided  by  law. 


Money,  labor  or  property  received  and  applied.  This  section  does  not 
mean  that  stocks  and  bonds  of  a  railroad  corporation  are  void,  unless 
issued  in  satisfaction  of  an  existing  liabilty  of  the  company  on  account  of 
money,  labor  or  property  previously  received  and  applied  to  a  corporate 
purpose.  Its  framers  did  not  intend  to  preclude  the  usual  and  customary 
manner  of  financing  railroads  by  the  sale  of  their  securities  for  money, 
labor  or  property,  to  be  used  thereafter  for  corporate  purposes.  This  sec- 
tion does  prevent,  however,  the  fraudulent  issue  of  such  securities,  on 
the  pretense  of  using  the  proceeds  for  corporate  purposes  when,  in  fact,  the 
proceeds  are  not  and  never  w^ere  intended  to  be  so  used,  and  when  the 
securities  do  not  represent  money,  labor  or  property,  either  in  posession  or 
in  expectancy.  Thus,  railroads  may  not  lend,  give  away  or  sell  their 
stocks  and  bonds  on  credit,  nor  may  they  dispose  of  them  except  for  a 
present  consideration  and  for  a  legitimate  corporate  purpose."^ 

However,  if  railroad  stocks  or  bonds  are  properly  issued  within  the 
limitations  suggested,  and  then,  later,  the  proceeds  thereof  are  actually 
misappropriated  or  used  for  an  illegitimate  purpose,  the  corporation  will  not 
be  allowed  to  avoid  its  liability  to  holders  of  the  securities  on  the  ground 
that  the  securities  were  void  when  issued.  To  this  extent,  at  least,  securi- 
ties will  not  be  held  to  be  void  in  the  hands  of  innocent  purchasers.     "In 


^"People  V  Blocki,  203  111.  363  (1903);  Chicago  Dock  Co.  v  Garrity,  115  111. 
155   (1S85):   Truesdale   v  P.  G.  S.  Co.,   101   111.   561    (1882). 

"7  Public    Utilities   Commission   v   C.    &   W.    T.    Ry.    Co..    275    111.    555    (1916). 

4sp.  &  S.  Ry.  Co.  V  Thompson.  103  111.  187  (1S82);  People  v  T'.  E.  Ry.  Co., 
263    111.    32    (1914);    Ry.   Co.    v   Dow.    120    U.    S.    287. 


274  Article  11,  Section  14 

short,  when  one,  for  a  present  consideration,  in  good  faith  purchases  bonds 
or  stocks  in  the  regular  course  of  business  from  a  railroad  company,  and 
such  consideration  is  accepted  by  the  proper  officers  of  the  company,  and 
nothing  appears  to  show  that  it  is  to  be  used  or  applied  to  other  than  legiti- 
mate corporate  purposes,  such  bonds  or  stocks,  when  thus  issued,  will  be 
regarded  as  being  issued  for  money,  labor  or  property  'actually  received  and 
applied'  within  the  meaning  of  the  constitutional  provision. "^^ 

This  section  not  only  forbids  the  issue  of  railroad  securities  where  no 
money,  labor  or  property  is  received,  as  a  consideration,  for  corporate  pur- 
poses; it  also  forbids  a  reckless,  fraudulent  or  dishonest  issue  in  excess  of 
the  consideration  received.  The  mere  fact,  however,  that  the  value  of  the 
securities  issued  exceeds  the  value  of  the  money,  labor  or  property  received 
therefor  will  not  render  the  transaction  fraudulent  and  the  issue  void. 
Thus,  where  all  that  appeared  in  a  petition  by  a  state's  attorney  for  leave 
to  file  an  information  in  the  nature  of  quo  loan-anto  was  that  $1,400,000 
worth  of  securities  had  been  issued  for  money,  labor  and  property  worth 
but  $400,000,  it  was  held  that  not  even  a  prima  facie  case  had  been  made 
out,  and  that  to  make  the  securities  void  under  the  constitution,  there  must 
appear,  in  addition  to  such  facts,  the  further  fact  either  of  fraudulent  intent 
or  of  such  an  excess  that  the  law  will  presume  fraud.^*  Such  a  case  was  held 
to  have  been  made  out  when  it  was  shown  in  a  similar  petition  that  as  a 
part  of  a  fraudulent  scheme  to  evade  the  constitutional  requirement  in 
making  a  dishonest  and  fictitious  issue  of  stocks  and  bonds,  first,  $5,000,000 
worth  of  stock  had  been  given  away  to  another  corporation,  at  par,  without 
any  consideration  whatever,  and,  second,  $4,387,000  worth  of  bonds  had 
been  issued  and  delivered  for  the  construction  of  a  railroad  which,  when 
completed  and  equipped,  did  not  cost  more  than  half  that  sum.''^ 


Section  14.  The  exercise  of  the  power,  and  the  right  of  emi- 
nent domain  shall  never  be  so  construed  or  abridged  as  to  prevent 
the  taking,  by  the  General  Assembly,  of  the  property  and  franchises 
of  incorporated  companies  already  organized,  and  subjecting  them 
to  the  public  necessity  the  same  as  of  individuals.  The  right  of  trial 
by  jury  shall  be  held  inviolate  in  all  trials  of  claims  for  compensa- 
tion, when,  in  the  exercise  of  the  said  right  of  eminent  domain,  any 
incorporated  company  shall  be  interested  either  for  or  against  the 
exercise  of  said  right. 

The  Supreme  Court  has  held  that  this  section  "was  inserted  out  of 
abundance  of  caution,  and  simply  declares  such  property  to  be  subject  to 
the  recognized  power  of  eminent  d.omain,  and,  like  other  private  property, 
protected  by  the  limitation,  that  private  property  shall  not  be  taken  with- 
out just  compensation,  to  be  ascertained  by  a  jury,  unless  the  same  is  to 
be  made  by  the  State.  It  is  simply  a  declaration  of  the  law  as  to  the  power 
of  the  State,  as  held  and  known  before  any  such  declaration  was  made. 
It  is  simply  a  recognition  of  the  truth,  (and  the  placing  of  it  beyond  cavil), 
that  the  property  of  corporations  is,  insofar  as  concerns  the  ownership 
thereof,  and  insofar  as  concerns  the  profit  or  gain  to  be  made  from  its  use — 
to  all  intents  and  purposes — private  property,  although  applied  to  a  use 
in   which   the  public  have   an  interest."'^^ 

(As  to  the  whole  subject  of  eminent  domain,  see  discussion  article  2, 
section  13.) 

*»P.  &  S.  Rv.  Co.  V  Thompson.   103   111.   187    (1882). 

S9  People   V   U.    E.    Ry.    Co.,    263    Til.    32    (1914). 

"People  V  U.  E.   Ry.   Co.,    269   111.    212    (1915). 

5^  Mitchell  V  I.  &  St.  L.  Rv.  &  C.  Co..  68  111.  286  (1873):  L.  S.  &  M.  S.  Ry. 
Co.  V  C.  &  W.  I.  Ry.  Co.,  97  111.  506  (1881):  A.  «&  S.  Ry.  Co.  v  Vandalia  Ry.  Co.. 
268    111.    68    (1915). 


Article  11,  Section  15  275 

Section  15.  The  General  Assembly  shall  pass  laws  to  correct 
abuses  and  prevent  unjust  discrimination  and  extortion  in  the  rates 
of  freight  and  passenger  tariffs  on  the  different  railroads  in  this 
State,  and  enforce  such  laws,  by  adequate  penalties,  to  the  extent,  if 
necessary,  for  that  purpose,  of  forfeiture  of  their  property  and  fran- 
chises. 


Franchises.  The  term  "franchises",  as  used  in  this  section  includes 
not  only  the  power  to  exist  as  a  corporation  but  the  power  of  a  railroad 
corporation  to  exercise  the  right  of  eminent  domain,  as  well/'-' 


Joint  rates.  The  Attorney  General  has  ruled  that  this  section  authori- 
izes  and  requires  the  General  Assembly  not  merely  to  regulate  the  charges 
made  by  each  carrier  separately,  but  to  regulate,  also,  the  joint  through  rate 
tariff  agreements  made  by  two  railroads  hauling  the  goods  over  different 
parts  of  the  same  route.^* 


Unjust  discriminations.  The  General  Assembly  has  the  power,  ir- 
respective of  this  section,  by  virtue  of  its  "police  power,"  to  enact  laws  pre- 
venting unjust  and  unreasonable  discriminations  in  railroad  rates  and  to 
enforce  that  legislation  by  adequate  and  appropriate  methods.  (See  dis- 
cussion, article  2,  section  2).  Moreover,  the  railroad  charters  were  orig- 
inally granted  subject  to  the  common  law  duty  of  carriers  to  charge  reason- 
able rates  which  would  not  unjustly  discriminate  between  either  individuals 
or  communities.  This  constitutional  provision  merely  makes  it  mandatory 
for  the  General  Assembly  to  enact  legislation  embodying  these  policies. 
However,  the  discriminations  forbidden  both  by  the  common  law  and  by 
the  constitution  are  those  which  are  unjust  or  unreasonable  in  fact.  Both 
the  common  law  and  the  constitution  recognize  that  not  all  discriminations 
are  prohibited.  By  implication,  therefore,  this  section  denies  to  the  General 
Assembly  the  power  to  prohibit  discriminations  which  are  neither  unjust 
nor  unreasonable.'" 


Penalties.  The  constitutional  convention  contemplated  that  the  penalty 
of  forfeiture  of  franchises  should  be  invoked  only  in  cases  of  extreme  neces- 
sity, after  more  lenient  penalties,  such  as  graduated  fines,  had  proved  to  be 
ineffectual.  Thus,  a  statutory  provision  requiring  the  forfeiture  of  all  fran- 
chises for  the  first  offense  of  unreasonable  or  unjust  discrimination,  violates 
this  section."**     (See  discussion,  article  2,  section  11.) 

(As  to  the  extent  to  which  the  General  Assembly  may  delegate  to  a 
commission  the  power  to  fix  railroad  rates,  see  discussion,  article  4,  section 
1,  subheading,  "Delegation  of  legislative  power.") 


^C.  &  W.   I.   Ry.   Co.  V  Dunbar,    95   111.   571    (1880). 
^Report    Attorney    General    1908.    p.    526. 
55  C.  &  A.     Ry.  Co.  V  People,  67  111.  11    (1873). 
s«C.  &  A.  Ry.  Co.  V  People,  67  111.  11    (1873). 


ARTICLE  XII— MILITIA 


Section  1.  The  militia  of  the  State  of  Illinois  shall  consist  of 
all  ablebodied  male  persons,  resident  in  the  State,  between  the  ages 
of  eighteen  and  forty-five,  except  such  persons  as  now  are,  or  here- 
after may  be,  exempted  by  the  laws  of  the  United  States,  or  of  this 
State. 


Section  2.  The  General  Assembly,  in  providing  for  the  organ- 
ization, equipment  and  discipline  of  the  militia,  shall  conform  as 
nearly  as  practicable  to  the  regulations  for  the  government  of  the 
armies  of  the  United  States. 


Section  3.  All  militia  officers  shall  be  commissioned  by  the 
Governor,  and  may  hold  their  commissions  for  such  time  as  the  Gen- 
eral Assembly  may  provide. 


Section  4.  The  militia  shall,  in  all  cases,  except  treason,  felony 
or  breach  of  the  peace,  be  privileged  from  arrest  during  their  attend- 
ance at  musters  and  elections,  and  in  going  to  and  returning  from 
the  same. 


Section  5.  The  military  records,  banners  and  relics  of  the 
State,  shall  be  preserved  as  an  enduring  memorial  of  the  patriotism 
and  valor  of  Illinois,  and  it  shall  be  the  duty  of  the  General  Assem- 
bly to  provide  by  law  for  the  safe-keeping  of  the  same. 


Section  6.  No  person  having  conscientious  scruples  against 
bearing  arms  shall  be  compelled  to  do  militia  duty  in  the  time  of 
peace:  Provided,  such  person  shall  pay  an  equivalent  for  such  ex- 
emption. 

277 


278  Article  12,  Sections  1-6 

The  power  vested  in  Congress  to  organize,  arm,  equip  and  discipline  the 
state  militia  is  not  exclusive.  The  state  may  exercise  concurrent  power  of 
legislation  not  inconsistent  with  that  of  Congress.  The  control  and  authority- 
over  the  militia  is  retained  by  the  state  except  in  so  far  as  that  power 
has  been  vested  in  Congress.  The  state  may  provide  for  or- 
ganizing such  portion  of  the  militia  into  an  active  force  as  it  may 
deem  necessary  to  enforce  its  laws  and  maintain  order.  The  organization  of 
the  active  militia  into  the  Illinois  national  guard  is  not  a  violation  of  the 
prohibition  in  the  United  States  constituJ:ion  against  the  keeping  of  troops  by 
a  state  in  time  of  peace.  When  the  militia  is  not  in  the  national  service,  the 
General  Assembly  may  direct  as  to  the  organization  of  the  militia.  It  is 
within  the  police  power  of  the  state  to  prohibit  the  organization  of  military 
companies  other  than  those  organized  by  the  state  or  the   United   States.* 

The  Attorney  General  has  said  that  a  member  of  the  national  guard  is 
subject  to  arrest  by  the  civil  authorities  for  treason,  felony  or  breach  of 
the  peace  even  while  engaged  in  active  service  for  the  state.  It  is  no  bar 
to  a  prosecution  in  the  civil  courts  that  the  offender  ha,s  been  tried  by 
court  martial  and  punished  for  the  same  olTense.- 

(In  connection  with  this  article,  see  discussion  article  2,  section  15.) 

1  Dunne    v    People,    94    111.    120    (1879). 
-Report    Attorney    General    1915,    p.    230. 


ARTICLE  XIII— WAREHOUSES 


Section  1.  All  elevators  or  storehouses  where  grain  or  other 
property  is  stored  for  a  compensation,  whether  the  property  stored 
be  kept  separate  or  not,  are  declared  to  be  public  warehouses. 


In  general.  The  warehouse  article  as  a  whole  impliedly  requires 
operators  of  public,  warehouses  to  refrain  from  practices  that  might  have  a 
tendency  to  make  their  private  interests  adverse  to  their  duties  as  public 
warehousemen.  For  example,  it  has  been  held  that,  even  in  the  absence  of 
legislation,  a  public  warehouseman  is  prohibited  by  this  article  from  mixing 
his  own  grain  with  that  of  his  customers  and  issuing  warehouse  receipts  to 
himself  therefor.  Similarly,  the  General  Assembly  is  without  power  to 
authorize  such  a  practice.^ 

The  provisions  of  the  section  under  consideration  contemplate  that  grain 
belonging  to  ^Jifferent  owners  will  not,  normally,  be  kept  separate  and  that 
the  holders  of  warehouse  receipts  will  not,  normally,  receive  back  the  same 
identical  grains  stored.- 


Regulation  of  public  warehouses.  This  article  is  not  the  source  of  the 
power  of  the  General  Assembly  to  regulate  public  warehouses.  The  General 
Assembly  has  the  power  to  regulate  public  warehouses,  that  is,  warehouses 
devoted  to  a  public  use  and  affected  by  a  public  interest,  by  virtue  of  what  is 
commonly  called  the  "police  power."^     (See  discussion  article  2,  section  2.) 

However,  an  elevator  or  warehouse  where  grain  or  other  property  is 
stored  for  a  compensation,  is  not  necessarily  made  a  public  warehouse  for 
purposes  of  state  regulation  by  this  constitutional  provision.  It  must,  to  be 
a  public  warehouse,  for  purposes  of  regulation  by  the  state,  be  devoted  to  a 
public  use  and  be  affected  by  a  public  interest,  in  fact.  In  other  words,  it  is 
the  public  agency  and  not  the  private  business  which  the  state,  by  the  ware- 
house article  of  the  constitution  seeks  to  regulate.  For  example,  it  has  been 
held  that  a  cold  storage  warehouse,  wherein  fruit,  vegetables,  and  dairy  pro- 
ducts are  regularly  stored  for  a  compensation  for  residents  of  several  states, 
and  which  is  open  to  the  use  of  all  the  members  of  the  public,  is  a  public  ware- 
house for  purposes  of  regulation  by  the  state,  not  because  of  the  provisions 
of  the  section  under  consideration,  alone,  but  because  it  is  devoted  to  a  public 
use,  in  fact.  On  the  other  hand  a  grist  mill  does  not  become  a  public  ware- 
house by  virtue  of  this  section  of  the  constitution,  when,  infrequently,  and  in 
isolated  cases,  the  owner  of  the  mill  stores  grain  for  others,  with  or  without 
charge,  under  an  option  to  buy  it  and  use  it  in  his  mill.^ 


1  Hannah   v   People,    198    111.    77    (1902). 

^Snydacker   v  Blatchley,    177   111.   506    (1899). 

sMunn  v  People.  69  111.  80  (1873);  Munn  v  Illinois,  94  U.  S.  113  (1876); 
Public  Utilities  Commission  v  Monarch  Refrigerator  Co.,   267   111.   528    (1915). 

■•Munn  V  People,  69  111.  SO  (1873);  Public  Utilities  Comission  v  Monarch 
Refrigerator   Co.,    267    111.   528    (1915);   Mayer  v   Springer,    192   111.   270    (1901). 

279 


280  Article  13,  Sections  2-4 

Section  2.  The  owner,  lessee  or  manager  of  each  and  every 
public  vv^arehouse  situated  in  any  town  or  city  of  not  less  than  one 
hundred  thousand  inhabitants,  shall  make  weekly  statements  under 
oath,  before  some  officer  to  be  designated  by  law,  and  keep  the  same 
posted  in  some  conspicuous  place  in  the  office  of  such  warehouse, 
and  shall  also  file  a  copy  for  public  examination  in  such  place  as 
shall  be  designated  by  law,  which  statement  shall  correctly  set  forth 
the  amount  and  grade  of  each  and  every  kind  of  grain  in  such  ware- 
house, together  with  such  other  property  as  may  be  stored  therein, 
and  what  warehouse  receipts  have  been  issued,  and  are,  at  the  time 
of  making  such  statement,  outstanding  therefor;  and  shall,  on  the 
copy  posted  in  the  warehouse,  note  daily  such  changes  as  may  be 
made  in  the  quantity  and  grade  of  grain  in  such  warehouse ;  and  the 
different  grades  of  grain  shipped  in  separate  lots,  shall  not  be  mixed 
with  inferior  or  superior  grades,  without  the  consent  of  the  owner 
or  consignee  thereof. 


(See  discussion  article  13,  section  7.) 


Section  3.  The  owners  of  property  stored  in  any  warehouse, 
or  holder  of  a  receipt  for  the  same,  shall  always  be  at  liberty  to  ex- 
amine such  property  stored,  and  all  the  books  and  records  of  the 
warehouse  in  regard  to  such  property. 


Section  4.  All  railroad  companies  and  other  common  carriers 
on  railroads  shall  weigh  or  measure  grain  at  points  where  it  is 
shipped,  and  receipt  for  the  full  amount,  and  shall  be  responsible  for 
the  delivery  of  such  amount  to  the  owner  or  consignee  thereof,  at 
the  place  of  destination. 


The  provisions  of  this  section  and  those  of  section  6  of  this  article  author- 
ize the  enactment  of  legislation  embracing  the  policies  therein  enunciated, 
applicable  to  railroads  and  common  carriers.  Therefore,  since  the  constitu- 
tion establishes  both  the  policy  of  the  regulation  and  the  classification  of 
those  subject  thereto,  legislation  which  requires  railroads  to  maintain  scales 
for  the  weighing  of  grain  at  stations  where  grain  is  shipped,  cannot  be  held 
invalid  as  being  either  unreasonable  or  class  legislation.  (See  discussion 
article  13,  section  7.)  Moreover,  this  section  makes  the  carrier  responsible 
for  any  loss  of  grain  in  transit,  to  the  full  extent  of  its  common  law  liability 
in  such  cases.  Its  only  available  excuses  for  such  a  loss  are  those  recognized 
at  common  law,  namely,  an  act  of  God,  or  the  public  enemy,  or  the  contribu- 
tory negligence  of  the  shipper.  Therefore,  the  carrier  may  not  limit  its  lia- 
bility, by  a  provision  in  a  bill  of  lading,  for  loss  caused  by  leakage,  shrink- 
age or  discrepancies  in  elevator  weights.  Such  provisions  are  contrary  to 
this  section  and  are  void.^ 


Shellabarger   Elevator   Co.   v   I.    C.   Ry.    Co.,    278    111.    333    (1917). 


Article  13,  Section  5  281 

Section  5.  All  railroad  companies  receiving  and  transporting 
grain  in  bulk  or  otherwise,  shall  deliver  the  same  to  any  consignee 
thereof,  or  any  elevator  or  public  warehouse  to  which  it  may  be  con- 
signed, provided  such  consignee  or  the  elevator  or  public  warehouse 
can  be  reached  by  any  track  owned,  leased  or  used,  or  which  can  be 
used,  by  such  railroad  companies;  and  all  railroad  companies  shall 
permit  connections  to  be  made  with  their  track,  so  that  any  such 
consignee,  and  any  public  warehouse,  coal  bank  or  coal  yard  may  be 
reached  by  the  cars  on  said  railroad. 


Track  which  can  be  used.  The  Supreme  Court  has  held  that  the  phrase 
in  the  first  clause  of  this  section,  "any  track  .  .  .  used,  or  which  can 
be  used,  by  such  railroad  companies,"  includes  only  those  c  )nnecting  tracks, 
spurs  or  switch  tracks  which  can  lawfully  be  used  by  the  railroad  company 
by  virtue  of  some  contract  with,  or  license  or  permission  received  from  the 
owner  thereof.  Moreover,  in  the  absence  of  such  authority,  the  mere  fact  that 
the  track  has  baen  used,  infrequently,  without  right,  will  not  bring  the 
case  within  this  rule.  In  other  words,  the  constitution  can  not  be  con- 
strued to  compel  a  trespass.^ 


Duty  to  permit  connections.  Under  the  second  clause  of  this  section, 
a  railroad  company  must  permit  connections  to  be  made  with  its  tracks  from 
coal  mines,  coal  banks,  coal  yards  and  public  warehouses.  (As  to  whether 
these  connections,  when  made,  are  subject  to  a  public  use,  see  discussion 
article  11,  section  12,  subheading,  "Connecting  tracks.")  The  railroad  com- 
pany may  exercise  a  reasonable  discretion  as  to  the  point  of  connection  at 
the  time  it  is  made,  but  not  afterward.  Once  a  connection  has  been  made, 
it  may  not  be  discontinued  by  the  railroad.  If  the  privilege  is  abused,  other 
remedies  than  removal  must  be  resorted  to,  to  stop  and  procure  reparation  for 
the  abuse.  If  the  connection  is  disrupted  by  the  railroad  it  must  be  re- 
stored, and  the  General  Assembly  is  not  prohibited  from  authorizing  the 
public  utilities  commission  to  require  the  railroad  company,  in  reasonable 
cases,  to  restore  the  connection  at  its  own  expense.^ 

The  duty  of  the  railroad  company  to  permit  connections  to  be  made  and 
maintained  between  its  line  and  a  public  warehouse,  however,  does  not  grant 
a  perpetual  right  to  the  shipper  to  have  the  connection  maintained  at  the 
original  grade.  A  city,  for  the  public  safety,  may  require  the  main  line  to 
be  elevated.  Moreover,  the  railroad  company  has  the  right  to  elevate  its 
tracks  in  good  faith,  for  efficiency,  economy  or  safety  of  operation.  In  such 
cases,  the  connection  may  be  severed,  but  the  warehouseman  has  the  right, 
under  the  provisions  of  this  section,  to  a  connection  at  the  new  grade.*" 

It  has  been  held  that  the  second  clause  of  this  section,  relative  to  con- 
nections with  coal  yards  and  coal  banks,  refers  only  to  the  duties  of  carriers 
and  not  to  those  of  the  owners  of  the  coal  banks  or  coal  yards.  Therefore, 
it  does  not  have  any  bearing  on  the  question  as  to  whether  coal  mining 
is  a  public  utility  for  purposes  of  regulation  by  legislation  applicable  to  that 
business  alone." 


«Hoyt  v  C.  B.  &  Q.  Ry.  Co.,  93  111.  601  (1879);  C.  M.  &  N.  Ry.  Co.  v 
National    Elevator   Co.,    153    111.    70    (1894). 

'Chlcas-o  Dock  Co.  v  Garrity.  115  111.  155  (1885);  C.  &  A.  Rv.  Co.  v  Suf- 
fern.  129  111.  274  (1889);  Public  Utilities  Commission  v  L.  K.  Sz  \V.  Ry.  Co., 
277    111.    574    (1917);    U.   S.   Adv.   Opinions,    1918-19.    p.    410. 

^Lord    v    City    of    ChicaRO,    274    111.    313     (1916). 

9Millett  V  People,  117  111,  294   (1886). 


282  Article  13,  Sections  6,  7 

Section  6.  It  shall  be  the  duty  of  the  General  Assembly  to  pass 
all  necessary  laws  to  prevent  the  issue  of  false  and  fraudulent  ware- 
house receipts,  and  to  give  full  effect  to  this  article  of  the  constitu- 
tion, which  shall  be  liberally  construed  so  as  to  protect  producers 
and  shippers.  And  the  enumeration  of  the  remedies  herein  named 
shall  not  be  construed  to  deny  to  the  General  Assembly  the  power 
to  prescribe  by  law  such  other  and  further  remedies  as  may  be 
found  expedient,  or  to  deprive  any  person  of  existing  common  law 
remedies. 


(See  discussion  article  13,  sections  1,  4.) 


Section  7.  The  General  Assembly  shall  pass  laws  for  the  in- 
spection of  grain,  for  the  protection  of  producers,  shippers  and  re- 
ceivers of  grain  and  produce. 


The  General  Assembly  has  the  power  to  pass  grain  inspection  laws  and 
to  vest  the  enforcement  thereof  in  a  commission,  irrespective  of  this  con- 
stitutional provision,  by  virtue  of  its  "police  power."  (See  discussion  article 
2,  section  2.)  The  Supreme  Court  has  held  that  under  this  section,  "no 
system  is  prescribed,  and  the  General  Assembly  is,  therefore,  left  to  the 
exercise  of  its  discretion  in  the  enactment  of  statutes,  in  compliance  with  this 
mandate."  Legislation  of  this  character,  moreover,  may  be  made  applicable 
only  to  cities  of  more  than  100,000  population,  for  "the  constitutior.  itself, 
in  article  13,  section  2,  discriminates  between  public  warehouses  in  cities 
of  not  less  than  100,000  inhabitants,  and  those  in  cities  of  less  population, 
and  recognizes  that  there  is  a  necessity  for  regulations  in  respect  to  the 
former,  not  necessary  to  the  latter."^" 


i'»  People   V   Harper,    91    111.    357    (1878). 


ARTICLE  XIV— AMENDMENTS  TO  THE  CONSTITUTION 


Section  1.  Whenever  two-thirds  of  the  members  of  each  house 
of  the  General  Assembly  shall,  by  a  vote  entered  upon  the  journals 
thereof,  concur  that  a  Convention  is  necessary  to  revise,  alter  or 
amend  the  constitution,  the  question  shall  be  submitted  to  the  elec- 
tors at  the  next  general  election.  If  a  majority  voting  at  the  election 
vote  for  a  convention,  the  General  Assembly  shall,  at  the  next  ses- 
sion, provide  for  a  convention,  to  consist  of  double  the  number  of 
members  of  the  senate,  to  be  elected  in  the  same  manner,  at  the 
same  places,  and  in  the  same  districts.  The  General  Assembly  shall, 
in  the  act  calling  the  Convention,  designate  the  day,  hour  and  place 
of  its  meeting,  fix  the  pay  of  its  members  and  officers,  and  provide 
for  the  payment  of  the  same,  together  with  the  expenses  necessarily 
incurred  by  the  convention  in  the  performance  of  its  duties.  Be- 
fore proceeding  the  members  shall  take  an  oath  to  support  the  Con- 
stitution of  the  United  States,  and  of  the  State  of  Illinois,  and  to 
faithfully  discharge  their  duties  as  members  of  the  Convention.  The 
qualification  of  members  shall  be  the  same  as  that  of  members  of  the 
Senate,  and  vacancies  occurring  shall  be  filled  in  the  manner  pro- 
vided for  filling  vacancies  in  the  General  Assembly.  Said  Conven- 
tion shall  meet  within  three  months  after  such  election,  and  prepare 
such  revision,  alteration  or  amendments  of  the  Constitution  as  shall 
be  deemed  necessary,  which  shall  be  submitted  to  the  electors  for 
their  ratification  or  rejection,  at  an  election  appointed  by  the  con- 
vention for  that  purpose,  not  less  than  two  nor  more  than  six 
months  after  the  adjournment  thereof ;  and  unless  so  submitted  and 
approved,  by  a  majority  of  the  electors  voting  at  the  election,  no 
such  revision,  alterations  or  amendments  shall  take  effect. 


This  section  has  never  been  interpreted  by  the  Supreme  Court.  The 
Attorney  General,  however,  has  been  called  upon  to  construe  some  of  its 
provisions. 

Women  cannot  vote  on  the  question  of  calling  a  constitutional  con- 
vention; nor  can  they  vote  for  delegates  to  the  convention.^  (See  dis- 
cussion article  7,  section  1,  subheading,  "Woman  suffrage"). 

A  member  of  the  General  Assembly  may  be  a  candidate  for  the  position 
of  delegate  but„  if  he  is  elected  and  qualifies  as  a  delegate,  he  vacates 
his  seat  in  the  General  Assembly.-  (See  discussion  article  3,  section  3,  sub- 
heading, "Qualifications  of  members  of  the  General  Assembly"). 

Delegates    must    be    nominated    and    elected   in    the    same    manner    as 

1  Report  Attorney  General  1917-18,  p.  1128.  See  Scown  v  Czarnecki,  264 
111.   305    (1914). 

2  Opinion  Attorney  General,  March   1,   1919. 


283 


284  Article  14,  Section  2 

senators  and,  since  senators  are  nominated  in  primary  elections,  delegates 
must  also  be  nominated  in  primary  elections.' 

(For  a  further  discussion  of  the  provisions  of  this  section,  oee  Consti- 
tutional Conventions  in  Illinois,  Second  Edition,  pp.   50-5G) 


Section  2.  Amendments  to  this  Constitution  may  be  proposed 
in  either  House  of  the  General  Assembly,  and  if  the  same  shall  be 
voted  for  by  two-thirds  of  all  the  members  elected  to  each  of  the 
two  houses,  such  proposed  amendments,  together  with  the  yeas  and 
nays  of  each  house  thereon,  shall  be  entered  in  full  on  their  respec- 
tive journals,  and  said  amendments  shall  be  submitted  to  the  elec- 
tors of  this  State  for  adoption  or  rejection,  at  the  next  election  of 
members  of  the  General  Assembly,  in  such  manner  as  may  be  pre- 
scribed by  law.  The  proposed  amendments  shall  be  published  in 
full  at  least  three  months  preceding  the  election,  and  if  a  majority 
of  the  electors  voting  at  said  election  shall  vote  for  the  proposed 
amendments,  they  shall  become  a  part  of  this  Constitution.  But  the 
General  Assembly  shall  have  no  power  to  propose  amendments  to 
more  than  one  article  of  this  Constitution  at  the  same  session,  nor 
to  the  same  article  oftener  than  once  in  four  years. 


Vote  required.  An  amendment  to  the  constitution  is  not  adopted  un- 
less it  is  voted  upon  favorably  by  a  majority  of  the  voters  participating 
in  the  election  at  which  it  is  submitted.  The  fact  that  it  receives  the 
favorable  votes  of  a  majority  of  those  voting  for  members  of  the  General 
Assembly  is  not  sufficient,  unless  that  majority  is  eaual  to  a  majority  of 
the  total  number  of  votes  cast  at  the  election.-'  The  phrase  "majority  of 
votes"  means  a  majority  of  male  votes,  as  women  cannot  vote  on  the 
question  of  adopting  a  constitutional  amendment.'^  (See  discussion  article 
7,  section  1,  subheading,  "Woman  suffrage"). 


Amendments  to  more  than  one  article.  While  the  General  Assembly 
has  no  power  to  propose  amendments  to  more  than  one  article  of  the 
constitution  at  the  same  session,  this  does  not  deprive  the  General  Assem- 
bly of  the  power  to  propose  an  express  amendment  to  one  article,  the  effect 
of  which  will  be  to  work  implied  changes  in  other  articles,  provided  that 
the  implied  changes  are  germane  and  incidental  to  the  purpose  of  the  ex- 
press amendment."  An  amendment,  however,  must  be  proposed  to  that 
article  of  the  constitution  to  which  it  has  the  most  definite  relationship. 
For  example,  the  Attorney  General  has  held  that  a  constitutional  amend- 
ment with  reference  to  taxation  must  be  proposed  to  the  article  relating 
to  revenue,  and  cannot  be  proposed  to  the  article  relating  to  the  legisla- 
tive department.'^  The  Attorney  General  has  also  held  that  this  provision 
of   the    constitution    cannot   be    evaded    by   having    the    General    Assembly 


3  Opinion  Attorney  General,  .January    28.    1919. 

^People   V    Steven.son.    281    Til.    17    (1917). 

•'5  Report  Attorney  General  1916,  pp.  146,  351.  See  Scown  v  Czarnecki,  264 
111.    305    (1914). 

«rity  of  Chicago  v  Reeves.  220  Til.  274   (1906). 

''Report  Attorney  General  1913,  p.  100.  See  City  of  Chicapro  v  Reeves, 
320   Til.   274    (1906), 


Article  14,  Section  2  285 

propose  an  amendment  to  one  article  at  its  regular  session,  and  then 
calling  a  special  session  of  the  General  Assembly  at  which  an  amendment 
to  another  article  is  proposed,  both  to  be  submitted  to  the  voters  at  the 
same  election;  in  his  opinion  amendments  to  only  one  article  of  the  con- 
stitution can  be  submitted  at  any  ,given  election.^  (See  Constitutional 
Conventions   in  Illinois,   Second   Edition,  pp.   29-35,   46,   98,   135-137). 


Date  of  going  into  effect.  An  amendment  to  the  constitution  becomes 
a  potential  and  operative  part  of  the  constitution  as  soon  as  it  is  pro- 
claimed adopted  by  the  proper  canvassing  authorities/ 


Report  Attorney  General  1912.  p.  102. 

People  V  Board  of  Supervisors,  100  111.  495   (1881). 


SECTIONS  SEPARATELY  SUBMITTED 


ILLINOIS  CENTRAL  RAILROAD 
No  contract,  obligation  or  liability  whatever,  of  the  Illinois 
Central  Railroad  Company,  to  pay  any  money  into  the  State  treas- 
ury, nor  any  lien  of  the  State  upon,  or  right  to  tax  property  of  said 
Company,  in  accordance  with  the  provisions  of  the  charter  of  said 
company,  approved  February  tenth,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  fifty-one,  shall  ever  be  released,  sus- 
pended, modified,  altered,  remitted,  or  in  any  manner  diminished  or 
impaired  by  legislative  or  other  authority;  and  all  moneys  derived 
from  said  company,  after  the  payment  of  the  State  debt,  shall  be  ap- 
propriated and  set  apart  for  the  payment  of  the  ordinary  expenses 
of  the  State  government,  and  for  no  other  purpose  whatever. 


The  Illinois  Central  Railroad  was  chartered  in  1851.  By  its  charter 
it  was  authorized  to  construct  a  railroad  "from  the  southern  terminus 
of  the  Illinois  and  Michigan  canal,  to  the  city  of  Cairo,  with  a  branch  to 
the  city  of  Chicago,  and  also  a  branch,  via  the  city  of  Galena,  to  a  point  on 
the  Mississippi  river,  opposite  the  town  of  Dubuque,  in  the  state  of  Iowa." 
Whenever  this  line  crossed  lands  owned  by  the  state,  the  charter  granted 
a  right  of  way  not  exceeding  two  hundred  feet  in  width  across  those  lands. 
In  addition  the  railroad  was  granted  2,595,000  acres  of  land,  received  by  the 
state  from  the  federal  government  for  railroad  purposes.  In  return  for  these 
grants  the  railroad  was  required  to  pay  five  per  cent  of  its  annual  gross 
income  to  the  state.  Moreover,  an  annual  tax  was  to  be  assessed  by  the 
Auditor  of  Public  Accounts  upon  all  the  corporate  assets,  as  determined 
from  a  statement  of  those  assets  filed  annually  by  the  company  with  the 
Auditor.  If  this  tax  should  exceed  three-fourths  of  one  per  cent  the  ex- 
cess was  to  be  deducted  from  the  annual  payment  of  five  per  cent.  In  case 
the  sum  of  these  two  taxes  should  not  equal  seven  per  cent  of  the  annual  in- 
come- of  the  company,  it  was  required  to  pay  seven  per  cent  of  its  yearly  in- 
come to  the  state  in  lieu  of  all  other  taxes.  (Charter  of  Illinois  Central  Rail- 
road Company,  Private  Laws,  1851,  pp.  61-74;  Brownson,  History  of  the  Illi- 
nois Central  Railroad  to  1870,  University  of  Illinois  studies  in  the  Social 
Sciences  1915.) 

During  the  period  from  1859  to  1870  the  railroad  paid  annually  into  the 
state  treasury  the  seven  per  cent,  of  its  gross  earnings  required  by  the  char- 
ter. The  proposed  constitution  of  1862  had  a  provision  that  the  legis- 
lature should  not  modify,  alter,  remit  or  impair  the  obligation  to  make  this 
payment.  In  the  constitutional  convention  of  1869-70  representatives  of  the 
counties  through  which  the  railroad  operated  wished  to  have  the  amount 
received  by  the  state  under  the  charter  distributed  among  the  counties  in 
which  the  right  of  way  lay,  in  view  of  the  fact  that  those  counties  were 
compelled  to  forego  the  collection  of  taxes  from  the  railroad.  But  the  op- 
ponents of  this  measure  finally  prevailed  and  the  last  clause  of  the  section 
making  this  fund  applicable  solely  to  state  purposes  was  adopted.  (Debates, 
pp.  1199-1202;    1243-1256.) 

287 


288  Separate  Sections  2,  3 

This  section  was  submitted  to  the  people  separately  and  was  adopted  by 
a  vote  of  147,032  in  favor  of  the  section,  to  21,310  votes  against  it.  The  only 
counties  in  which  a  majority  of  the  voters  were  opposed  to  the  adoption 
of  the  section  were  Champaign,  Fayette,  Iroquois,  Kankakee  and  Marion. 
(Debates,  pp.   1894-1895.) 

This  section  has  met  with  slight  attention  from  the  courts.  However, 
the  provisions  of  the  charter  of  the  company  exempting  it  from  taxation 
have  been  strictly  construed.  (See  discussion  article  9,  section  3,  subheading, 
"Commutations — Illinois   Central   Railroad    Company.") 

In  the  report  of  the  case  of  State  of  Illinois  v  Illinois  Central  Railroad 
Company,  decided  by  the  Supreme  Court  in  1910,'  there  is  a  resume  of  the 
relations  between  the  railroad  and  the  state,  including  the  court's  inter- 
pretation of  the  duties  of  the  company  under  its  charter,  particularly  with 
respect  to  the  mode  of  computing  its  gross  revenue. 


MINORITY   REPRESENTATION. 

(See  article  4,  sections  7,  8). 


MUNICIPAL    SUBSCRIPTION    TO    RAILROADS    OR    PRIVATE 
CORPORATIONS 

No  county,  city,  town,  township,  or  other  municipaHty,  shall 
ever  become  subscriber  to  the  capital  stock  of  any  railroad  or  private 
corporation,  or  make  donation  to  or  loan  its  credit  in  aid  of,  such 
corporation:  Provided,  however,  that  the  adoption  of  this  article 
shall  not  be  construed  as  affecting  the  right  of  any  such  municipal- 
ity to  make  such  subscriptions  where  the  same  have  been  author- 
ized, under  existing  laws,  by  a  vote  of  the  people  of  such  municipal- 
ities prior  to  such  adoption. 


Railroads.  The  constitution  of  1848  provided  in  section  38  of  article  3 
that  the  credit  of  the  state  should  not  be  given  in  aid  of  any  individual, 
association  or  corporation.  (See  Constitutional  Conventions  in  Illinois, 
Second  Edition,  p.  13).  This  precluded  the  state  from  making  donations 
to  railroads  or  making  subscriptions  to  railroad  stocks,  but  it  did  not  pre- 
vent counties,  cities,  townships  and  other  municipalities,  when  authorized 
by  the  General  Assembly,  from  making  such  donations  or  subscriptions. - 
When  the  constitutional  convention  of  1869-70  assembled,  the  municipalities 
of  the  state  were  engaged  in  a  reckless  competition  to  secure  railroads  by 
voting  extravagant  subsidies.  This  provision  of  the  constitution  was  in- 
serted to  stop  this  practice.  A  separate  vote  was  had  upon  (his  section 
and   it   was   adopted  by   a   large   majority. 

By  far  the  greater  number  of  cases  arising  under  this  section  have 
arisen  with  reference  to  the  construction  to  be  given  to  the  last  clause, 
which  provides  that  subscriptions  may  be  made  after  the  adoption  of  the 
constitution  "where  the  same  have  been  authorized,  under  existing  laws 
by  a  vote  of  the  people  of  such  municipalities  prior  to  such  adoption". 
In  the  main  it  appears  that  four  questions  arise  with  respect  to  whether 
or  not   specific   subsidies   fall   within   this   saving   clause: 

(1)  The  first  question  relates  to  the  exact  date  from  which  the  voting 
of  subscriptions  is  prohibited.     In  one  case  a  subscription  was  voted  at  a 


1246    111.    188:    see.    also.    Pf-ople    v    I.    C.    R.    R.    Co..    273    111.    220     (1916); 
Report    Attorney    General    1014.    pp.    44-76;    1916.    pp.    31-2. 

2Prettyman    v    Supervisors    of   Tazewell    County,    19    111,    406    (IS.'SS). 


Separate  Section  3  289 

town  meeting  held  at  9:00  A.  M.,  July  2,  1870,  the  date  of  the  election  at 
which  the  constitution  was  adopted."  The  Supreme  Court  of  the  United 
States  held  that  this  subscription  was  a  valid  subscription  within  the 
last  proviso  of  the  section,  since  it  was  voted  prior  to  the  adoption  of  the 
constitution.*  However,  in  another  case,  where  the  proposition  of  railroad 
aid  and  the  matter  of  adopting  the  constitution  were  balloted  upon  at  the 
same  polls  jthe  Supreme  Court  of  Illinois  held  that  the  vote  authorizing 
the  subscription  was  not  taken  prior  to  the  adoption  of  the  constitution.^ 

(2)  Another  question  arose  with'  respect  to  the  interpretation  to  be 
given  the  words  "under  existing  laws"  in  the  clause  which  allows  subscrip- 
tions to  be  made  after  the  adoption  of  the  constitution  if  they  were 
"authorized  under  existing  laws  by  a  vote  of  the  people  of  such  municipali- 
ties prior  to  such  adoption."  The  Supreme  Court  took  the  view  that  the 
words  "under  existing  laws"  referred  to  laws  existing  at  the  time  of  the 
vote  of  the  people  of  the  particular  naunicipality,  rather  than  laws  exist- 
ing at  the  time  of  the  adoption  of  the  constitution.  Thus  where  a  sub- 
scription was  voted  in  1867  without  legislative  authority,  and  in  1869  an 
act  was  passed  validating  such  election,  it  was  held  that  the  subscription 
could  not  be  made  after  July  2,  1870,  since  it  was  not  authorized  under 
existing  laws   prior  to  the   adoption  of  the  constitution.'' 

(3)  A  somewhat  peculiar  question  arose  where  subscriptions  were 
authorized  upon  certain  conditions  by  vote  taken  prior  to  1870,  and  after 
that  date  it  was  attempted  to  make  the  subscription  upon  altered  conditions. 
The  Supreme  Court  took  the  view  that  a  subscription  could  be  made  after 
the  adoption  of  the  constitution  only  upon  the  exact  condition,  by  which 
the  people,  by  the  votcji  taken  prior  to  such  adoption,  had  authorise!  it  to 
be  made.'' 

(4)  It  will  be  noticed  that  the  first  portion  of  this  section  inhibits 
both  donations  and  subscriptions,  while  the  saving  clause  by  its  terms 
refers  only  to  subscriptions.  However,  the  Supreme  Court  held  that  dona- 
tions were  impliedly  included  within  the  saving  proviso.^ 

(See  Schedule,  section  24).  ' 


Private  corporations.  While,  under  the  constitution  of  1848  the  Gen- 
eral Assembly  might  authorize  counties,  cities,  townships  and  other  mu- 
nicipalities to  make  donations  to,  or  subscriptions  to  the  capital  stock  of 
railroads,*  it  was  held  that  such  municipalities  could  not  be  authorized  to 
make  donations  to  private  manufacturing  corporations,  since  such  an  ex- 
penditure of  municipal  funds  would  not  be  for  a  "corporate  purpose"  within 
the  purview  of  section  5  of  article  9  of  the  constitution  of  1848.^^  (See  dis- 
cussion article  9,  section  9,  subheading,  "Corporate  purposes.").  However, 
in  one  case  this  separate  section  has  been  applied  in  holding  invalid  a  mu- 
nicipal donation  to  a  private  corporation,  without  any  reference  to  the 
question  of  whether  the  donation  was  for  a  corporate  purpose.  In  1867  the 
General  Assembly  incorporated  the  Washingtonian  Home  for  the  care  of 
inebriates,  and  provided  that  the  city  of  Chicago  should  pay  to  the  Home 
one-tenth  of  the  money  received  from  liquor  licenses.  The  Supreme  Court, 
without  any  consideration  of  whether  this  donation  was  for  a  "corporate 
purpose",  held  that  it  was  invalid  as  a  donation  to  a  private  corporation 
within  the  prohibition  of  the  section  under  discussion."    But  a  statute  mak- 

3  This  section  was  submitted  to  the  people  separately,  and  the  Supreme 
Court  held  that,  under  section  12  of  the  schedule,  sections  submitted  separately 
took  effect  upon  the  day  upon  which  they  were  approved  by  the  people  (July  2, 
1870).  instead  of  the  date  specified  in  the  schedule  for  the  remainder  of  the 
constitution  to  go  into  effect  (August  8,  1870).  See  Sclall  v  Bowman,  62  111. 
321    (1872). 

*  Louisville   v   Savings   Bank,    104    U.    S.    469    (1881). 

5  People  v  Town  of  Bishop.   Ill   111.   124    (1884). 

"Williams    v    People,    132    111.    574    (1890). 

TRicheson    v   People,   115    111.    450    (1886). 

sf.   &   I.   R.   R.   Co.   V   Pinckney.    74   111.    277    (1874). 

»Prettyman    v    Supervisors    of    Tazewell    County,    19    111.    406    (1858). 
i«  Mather  v  City   of  Ottawa,    114   111.    659    (1885);   Bissell    v   City   of   Kanka- 
kee,   64    111.    249,    (1872);    English    v    People.    96    111.    566     (1880). 

"Washingtonian  Home  v  City   of  Chicago,    157   111.   414    (1895). 


290  Separate  Section  4 

ing  a  city  liable  for  loss  of  private  property  occasioned  by  the  action  of 
a  mob  was  held  not  to  fall  within  the  inhibition  of  this  section.^-  It  was 
also  held  that  an  agreement  between  the  city  of  Chicago  and  a  railroad, 
whereby  the  city  agreed  to  pay  all  damage  sustained  by  private  property 
owners  in  the  elevation  of  the  railroad  tracks,  did  not  violate  this  section.^^^ 


CANALS 

The  Illinois  and  Michigan  Canal,  or  other  canal  or  waterway- 
owned  by  the  State  shall  never  be  sold  or  leased  until  the  specific 
proposition  for  the  sale  or  lease  thereof  shall  first  have  been  submit- 
ted to  a  vote  of  the  people  of  the  State  at  a  general  election,  and 
have  been  approved  by  a  majority  of  all  the  votes  polled  at  such 
election.  The  General  Assembly  shall  never  loan  the  credit  of  the 
State  or  make  appropriations  from  the  treasury  thereof,  in  aid  of 
railroads  or  canals; 

Provided,  that  any  surplus  earnings  of  any  canal,  vv^aterway  or 
water  power  may  be  appropriated  or  pledged  for  its  enlargement, 
maintenance  or  extension;  and. 

Provided,  further,  that  the  General  Assembly  may,  by  suitable 
legislation,  provide  for  the  construction  of  a  deep  waterway  or  canal 
from  the  present  water  power  plant  of  the  Sanitary  District  of  Chi- 
cago at  or  near  Lockport,  in  the  township  of  Lockport,  in  the  county 
of  Will,  to  a  point  in  the  Illinois  river  .at  or  near  Utica,  which  may 
be  practical  for  a  general  plan  and  scheme  of  deep  waterway  along 
a  route  which  may  be  deemed  most  advantageous  for  such  plan  of 
deep  waterway;  and  for  the  erection,  equipment  and  maintenance 
of  power  plants,  locks,  bridges,  dams  and  appliances  sufficient  and 
suitable  for  the  development  and  utilization  of  the  water  power 
thereof;  and  authorize  the  issue,  from  time  to  time,  of  bonds  of  this 
State  in  a  total  amount  not  to  exceed  twenty  million  dollars,  which 
shall  draw  interest,  payable  semi-annually,  at  a  rate  not  to  exceed 
four  per  cent  per  annum,  the  proceeds  whereof  may  be  applied  as 
the  General  Assembly  may  provide,  in  the  construction  of  said 
waterway  and  in  the  erection,  equipment  and  maintenance  of  said 
power  plants,  locks,  bridges,  dams  and  appliances. 

All  power  developed  from  said  waterway  may  be  leased  in  part 
or  in  whole,  as  the  General  Assembly  may  by  law  provide,  but  in  the 
event  of  any  lease  being  so  executed,  the  rental  specified  therein  for 
water  power  shall  be  subject  to  a  revaluation  each  ten  years  of  the 
term  created,  and  the  income  therefrom  shall  be  paid  into  the  treas- 
ury of  the  State/* 


12  City   of   Chicag-o   v   Cement  Co.,    178    111.   372    (1899). 

13  City   of  Chicago   v  P.   C.   C.   C.   &   St.   L,.   Ry.   Co.,   244   111.,    220    (1910). 

"  As  amended  by  the  seventh  amendment  to  the  constitution.  The  amend- 
ment was  proposed  by  a  resolution  of  the  greneral  assembly  in  1907.  It  was 
ratified  by  the  voters  on  November  3,  1908,  and  proclaimed  adopted  on  Novembr 
24,    1908.      The   original    section   was   as   follows: 

"The  Illinois  and  Michie:an  Canal  shall  never  be  sold  or  leased  until  the 
specific  proposition  for  the  sale  or  lease  thereof  shall  first  have  been  submitted 


Separate  Section  4  291 

Almost  as  soon  as  Illinois  was  admitted  to  statehood,  the  project  for 
a  canal,  connecting  the  waters  of  Lake  Michigan  with  those  of  the  Illi- 
nois river,  took  form.  In  1822,  the  federal  government  made  the  first 
grant  of  land  to  the  state  for  canal  purposes.  The  problem  of  financing 
this  internal  improvement  proved  a  difficult  one,  and  it  was  not  until  1848 
that  the  Illinois  and  Michigan  Canal,  connecting  the  south  branch  of  the 
Chicago  river  with  the  Illinois  river  at  Utica,  was  opened  to  navigation. 
The  total  cost  of  this  improvement  was  approximately  six  and  one  half 
million  dollars.  At  this  time,  and  until  1871,  the  title  to  the  canal  was 
vested  in  a  board  of  trustees,  who  managed  the  waterway  for  the  benefit  of 
its  creditors.  The  canal  had  a  prosperous  career  during  this  period,  and 
in  April,  1871,  all  of  the  creditors  were  paid  and  the  trust  was  dissolved. 
At  this  time  the  trustees  paid  over  to  the  state  a  balance  of  approximately 
ninety-six  thousand  dollars.  (See  Putnam,  The  Illinois  and  Michigan  Canal, 
University   of   Chicago   Press,    1918,   pp.    61-65). 

The  provision  against  leasing  or  selling  the  canal  was  inserted  in  the 
constitution  of  1870  to  prevent  the  railroads  from  buying  or  leasing  the 
canal  for  the  purpose  of  drying  it  up,  and  thereby  throttling  competition. 
The  second  sentence  providing  against  any  appropriation  of  money  by  the 
General  Assembly  in  aid  of  canals  was  inserted  to  prevent  the  canal  from 
becoming  a  burden  upon  the  state  in  case  its  expenses  should  exceed  its 
revenues.  (Debates,  pp.  311-479;  484-487).  This  section  was  submitted  to 
the  people  separately  and  was  adopted  by  a  large  majority. 

Commencing  in  1879  the  annual  expenses  of  the  canal  exceeded  the 
annual  tolls  ,  and  the  General  Assembly  fell  into  the  practice  of  making 
biennial  appropriations  from  the  state  treasury  to  cover  the  deficits.  How- 
ever, in  1904,  in  the  case  of  Burke  v  Snively,^"'  it  was  held  ^^hat  such  fip- 
propriations  violated  this  provision  of  the  constitution.  In  that  case  the 
,  court  said:  "We  are  of  the  opinion  that  the  true  meaning  of  the  consti- 
I  tutional  provision  with  reference  to  the  canal  is,  that  the  legislature  should 
have  power  to  operate  it  to  the  extent,  and  to  the  e:^tent  only,  that  the 
income  of  the  canal  would  defray  the  expenses  of  operation,  maintenance 
and  preservation,  and  that  no  moneys  shall  be  appropriated  from  the  trea- 
sury of  the  state  in  aid  of  the  operation,  maintenance  or  preservation 
thereof,  and  that  if  the  earnings  of  the  canal  produced  a  surplus,  appro- 
priations of  such  surplus  might  be  made  to  aid  in  the  enlargment  or  ex- 
tension of  the  canal,  should  the  legislature  deem  it  wise  to  so  appropriate 
such  surplus." 

The  Supreme  Court  has  held  that  the  provision  against  selling  or 
leasing  the  canal  without  a  popular  vote  prevented  the  canal  commission- 
ers from  giving  the  city  of  Chicago  the  right  to  maintain  perpetually  a 
sewer  under  the  canal.  All  that  can  be  given  in  such  a  case  is  a  license, 
revocable  at  will.^® 

In  1908  this  section  was  amended  to  provide  for  the  construction  of  a 
deep  waterway  from  Lockport  to  Utica.  After  the  passage  of  this  amend- 
ment it  was  urged  upon  the  Supreme  Court  that  an  act  of  the  General 
Assembly  providing  for  an  eight  foot  waterway  from  Lockport  to  Utica, 
for  which  the  obligations  of  the  state  were  to  be  issued,  violated  this 
section,  since  the  proviso  stipulating  a  "deep  waterway"  meant  a  waterway 
which  ocean-going  vessels  could  navigate.  But  the  court  refused  to  hold 
that  an  eight  foot  waterway  was  not  a  deep  waterway .^^ 


to  a  vote  of  the  people  of  the  state,  at  a  general  election,  and  have  been  ap- 
proved  by  a  maiority  of  all    the  votes   polled  at  such   election. 

"The  General  Assembly  shall  never  loan  the  credit  of  the  State  or  make 
appropriations  from  the  treasury  thereof,  in  aid  of  railroals  or  canals:  Pro- 
vided that  anv  surplus  earnings  of  any  canal  may  be  appropriated  for  its 
enlarg-ement    or    extension." 

i-'208   111.   328    (1904). 

i«Citv  of  Chicago  v  Green.  238  lU.  258  (1909):  Report  Attorney  General 
1914,  p.  123;  1918,  p.  699;  but  see  People  v  Economy  Power  Coirpany,  241  111. 
290    (1909). 

17  Hubbard   v   Dunne.    276    111.    598    (1917). 


292  Separate  Section  5 


CONVICT    LABOR. 


Hereafter  it  shall  be  unlawful  for  the  Commissioners  of  any 
Penitentiary,  or  other  reformatory  institution  in  the  State  of  Illi- 
nois, to  let  by  contract  to  any  person,  or  persons,  or  corporations, 
the  labor  of  any  convict  confined  within  said  institution.^^ 


i»  The  separate  section  relating  to  convict  labor  was  added  as  the  fourth 
amendment  to  the  constitution.  The  amendment  was  proposed  by  resolution 
of  the  g-eneral  assembly  in  1885.  It  was  ratified  by  the  voters  on  November  2, 
1886,  and  proclaimed  adopted  on  November  22,  1886.  The  original  amendment 
contains  no  title. 


SCHEDULE 


That  no  inconvenience  may  arise  from  the  alterations  and 
amendments  made  in  the  constitution  of  this  State,  and  to  carry  the 
same  into  complete  effect,  it  is  hereby  ordained  and  declared: 


Section  1.  That  all  laws  in  force  at  the  adoption  of  this  Con- 
stitution, not  inconsistent  therewith,  and  all  rights,  actions,  prosecu- 
tions, claims,  and  contracts  of  this  State,  individuals,  or  bodies  cor- 
porate, shall  continue  to  be  as  valid  as  if  this  Constitution  had  not 
been  adopted. 


The  provisions  of  this  section  are  the  same  as  those  of  section  1  of 
the  schedule  of  the  constitution  of  1848.  The  Supreme  Court  had  occasion 
to  construe  these  provisions  of  the  constitution  of  1848  in  the  case  of 
Wood  V  Blanchard.^  The  constitution  of  1818  had  expressly  created  the 
office  of  coroner,  and  had  left  the  matter  of  providing  for  the  election 
and  duties  of  that  officer,  to  the  General  Assembly.  Legislation  of  that 
character,  enacted  in  1819,  as  amended  in  later  years,  was  still  in  force 
when  the  constitution  of  1848  was  adopted.  That  constitution  did  not  ex- 
pressly create  or  continue  the  office  of  coroner.  The  question  arose, 
whether,  under  the  constitution  of  1848.  there  was  such  an  office  as  that 
of  coroner.  The  General  Assembly  had  not,  since  the  adoption  of  the 
constitution  of  1848,  expressly  created  such  an  office.  The  court  held: 
"If  there  be  such  an  office  as  coroner  in  this  State,  it  must  depend  for 
its  existence  upon  legislative  enactments;  either  those  adopted  by  the 
constitution,  or  since  passed,  or  upon  constitutional  inference;  for,  as 
before  remarked,  it  is  not  expressly  created  by  the  constitution.  The  elec- 
tion law,  and  the  law  concerning  sheriffs  and  coroners,  of  1845,  provide  for 
the  election  of  coroners,  and  prescribe  their  duties.  Although  the  old  con- 
stitution created  the  office,  these  laws  would  be  ample,  without  its  aid,  to  do 
so;  but  it  is  not  to  be  denied,  that  they  were  passed  with  a  view  to  fill 
the  office  already  created,  rather  than  creating  it.  Still,  as  the  new  con- 
stitution expressly  continued  in  force  all  previous  laws,  not  inconsistent 
with  it,  it  has  certainly  continued  these  former  laws  in  force.  The  legis- 
lature had  the  right  to  enact  precisely  such  laws  as  these  under  the  new 
constitution,  and  had  this  been  done,  it  would  thereby  have  created  the 
office  of  coroner  and  prescribed  his  duties  beyond  all  question.  I  then 
ask  confidently,  whether  the  convention  did  not  do  the  same  thing,  by 
continuing  these  old  laws  in  force?  Suppose  the  schedule  to  the  consti- 
tution had  declared,  in  express  terms,  that  the  laws  then  in  force,  pro- 
viding for  the  election  of  coroners  and  prescribing  their  duties,  should 
continue  in  force  till  repealed  or  altered  by  the  legislature.     Who  could 


119   111.   38    (1857). 

293 


294  Schedule,  Section  1 

truthfully  deny  that  it  was  the  intention  of  the  convention  that  the  office 
of  coroner  should  continue  to  exist?  So  that  I  think  I  may  truly  say 
that  if  the  legislature,  in  passing  those  laws,  did  not  intend  to  create  the 
office  of  coroner,  the  convention,  by  continuing  them  in  force,  did  intend 
to  continue  that  office  in  existence,  subject  to  the  control  of  the  legis- 
lature. The  language  of  the  first  section  of  the  schedule  of  the  new  con- 
stitution is  this:  'That  all  laws  in  force  at  the  adoption  of  this  consti- 
tution, not  inconsistent  herewith,'  'shall  continue  and  be  as  valid  as  if 
this  constituion  had  not  been  adopted.'  .  Now  when  M'e  admit  that  the  legis- 
lature might,  under  the  new  constitution,  have  enacted  just  such  laws  as 
those  referred  to,  we  admit  that  those  laws  are  not  inconsistent  with  the 
constitution,  for  the  legislature  could  pass  no  laws  inconsistent  with  it. 
If  then  they  are  not  inconsistent  with  it,  they  are  declared  to  be  as  valid 
as  if  the  constitution  had  not  been  adopted.  All  the  laws  thus  continued 
in  force  are,  strictly  speaking,  reenactments  by  the  convention,  and  we 
therefore  look  to  that  for  their  validity.  We  repeat,  therefore,  that  we 
are  warranted  in  saying  that  the  office  of  coroner  was  continued  by  the 
adoption   of  the  new  constitution." 

The  court  also  held  that  this  view  was  materially  strengthened  by  the 
fact  that  in  section  14  of  the  schedule  of  the  constitution  of  1848  the 
framers  of  that  instrument  recognized  the  continued  existence  of  the 
office  of  coroner  by  the  provision:  "That  if  this  contsitution  shall  be  rati- 
fied by  the  people,  the  governor  shall  forthwith,  after  having  ascertained 
the  fact,  issue  writs  of  election  to  the  sheriffs  of  the  several  counties  of  this 
state;  or,  in  case  of  vacancy,  to  the  coroners,  for  the  election  of  all  the  offi- 
cers whose  election  is  fixed  by  this  constitution  or  schedule;  and  it  shall 
be  the  duty  of  said  sheriffs  or  coroners  to  give  at  least  twenty  days'  notice 
of  the  time  and  place  of  said  election,  in  the  manner  now  prescribed  by 
law." 

(It  should  be  noted,  in  connection  with  the  foregoing  discussion,  that 
although  sections  1  and  14  of  the  schedule  of  the  constitution  of  1848  were 
taken  over  into  sections  1  and  17,  respectively,  of  the  schedule  of  the  con- 
stitution of  1870,  the  office  of  coroner  was  expressly  created  by  th«  con- 
stitution of  1870  in  sections  8  and  9  of  article  10  of  that  instrument.  The 
Wood  v  Blanchard  case  is  discussed  here,  not  because  of  the  fact  situation 
involved,  but  because  of  the  principles  of  constitutional  construction  which 
it  serves  to  illustrate.) 

The  case  of  City  of  Bloomington  v  Pollock,^  arose  under  the  provisions  of 
section  1  of  the  schedule  of  the  constitution  of  1870.  The  facts  in  that  case 
were  as  follows:  In  1860,  the  city  passed  an  ordinance  fixing  the  grade 
to  which  a  certain  street  was  to  be  raised.  The  street  was  not  raised  to 
that  grade  until  1889.  A  house  had  been  erected  on  a  lot  abutting  upon  the 
street  in  1858.  The  house  and  lot  were  purchased  by  Pollock  in  1878.  When 
the  street  level  was  raised  in  1889,  Pollock  sued  the  city  for  the  damage  to  his 
property  resulting  from  the  improvement,  and  recovered.  The  city  appealed, 
and  the  court  held:  "Another  claim  made  is,  that  the  ordinance,  of  1860, 
establishing  the  grade  to  which  the  street  was  raised  in  1889,  was  passed 
before  the  adoption  of  the  constitution  of  1870;  that  prior  to  the  constitu- 
tional guaranty  in  that  instrument  of  just  compensation  for  private  prop- 
erty damaged  for  public  use,  [article  2,  section  13],  the  city  had  the  right, 
using  due  care  and  skill,  to  change  the  surface  of  the  street  without  in- 
curring liability  for  resulting  damage,  and  that  therefore  appellant  is  not 
bound  to  respond  in  damages  in  this  cause.  This  claim  is  predicated  upon 
section  1  of  the  schedule  to  the  constitution  .  .  .  Assuming  that  the 
ordinance  is  a  'law'  within  the  meaning  of  this  section,  yet  the  only  effect 
of  said  section  is,  that  the  ordinance  continued  in  force  as  a  valid  official 
establishment  of  the  grade  of  the  street,  and  the  only  'right'  preserved  to 
the  city  was  the  right  to  raise  the  street  to  that  grade  without  further  legis- 
lation on  Its  part  fixing  the  grade  determined  therein  as  the  official  grade 


-141    111.    346    (1892). 


Schedule,  Sections  2-4  295 

of  the  street.  If  the  ordinance,  in  fact,  carries  with  it,  as  an  element, 
immunity  from  the  burden  of  compensating  for  damage  done  private  prop- 
erty, then  it  is  a  law  in  regard  to  which  it  is  impossible  to  affirm  that  it  is 
'not  inconsistent'  with  the  constitution,  and  in  that  event  it  is  not 
within  the  purview  of  said  section  1  of  the  schedule,  and,  by  necessary 
implication,  was  repealed  by  section  13  of  article  2  of  the  constitution. 
But,  as  we  understand  it,  the  sole  and  only  function  of  the  ordinance  was  to 
establish  the  grade  of  the  street.  The  matter  of  the  liability  or  non-liability 
for  injury  that  might  or  might  not  thereafter  be  occasioned  by  bringing 
the  street  to  the  grade  so  established,  was  and  is  a  matter  wholly  dehors 
the  ordinance  itself,  and  the  question  of  such  immunity  or  liability  de- 
pends exclusively  upon  the  mandate  of  the  law  which  is  in  force  at  the 
time  the  grading  is  in  fact  done.  In  our  opinion  there  is  no  merit  in  this 
claim   of   immunity   made   by   appellant." 

(See    discussion    article    2,    section    13,    subheading,    "What    constitutes 
damage".) 


Section  2.  That  all  fines,  taxes,  penalties  and  forfeiture^,  due 
and  owing  to  the  State  of  Illinois  under  the  present  constitution  and 
laws,  shall  inure  to  the  use  of  the  people  of  the  State  of  Illinois, 
under  this  Constitution. 


The  Supreme  Court  has  held  that  this  section  "of  the  schedule  is  clearly 
a  saving  clause  inserted  in  the  constitution,  saving  to  the  state  all  fines, 
taxes,  penalties  and  forfeitures  then  due  and  owing  to  the  state,  and  applies 
to  nothing  else.  This  statute,  [the  wife  abandonment  act  of  1903,  under 
which  all  fines  imposed  might  be  directed  by  the  court  to  be  paid  to  the 
wife  and  children  instead  of  to  the  state],  in  nowise  affects  any  fines,  taxes, 
penalties  or  forfeitures  which  were  due  and  owing  to  the  State  of  Illinois 
at  the  time  of  the  adoption  of  the  constitution  of  1870."^ 


Section  3.  Recognizances,  bonds,  obligations,  and  all  other 
instruments  entered  into  or  executed  before  the  adoption  of  this  con- 
stitution, to  the  people  of  the  State  of  Illinois,  to  any  State  or  county 
officer  or  public  body,  shall  remain  binding  and  valid,  and  rights  and 
liabilities  upon  the  same  shall  continue,  and  all  crimes  and  misde- 
meanors shall  be  tried  and  punished  as  though  no  change  had  been 
made  in  the  Constitution  of  this  State. 


Section  4.  County  courts  for  the  transaction  of  county  busi- 
ness in  counties  not  having  adopted  township  organization,  shall 
continue  in  existence,  and  exercise  their  present  jurisdiction  until 
the  board  of  county  commissioners  provided  in  this  Constitution,  is 
organized  in  pursuance  of  an  act  of  the  General  Assembly ;  and  the 
county  courts  in  all  other  counties  shall  have  the  same  power  and 


People    v    Heise.    257    111.    443    (1913). 


296  Schedule,  Section  5 

jurisdiction  they  now  possess  until  otherwise  provided  by  general 
law. 


The  first  clause  of  this  section  did  not  operate  to  prohibit  the  General 
Assembly  from  conferring  additional  powers  upon  county  courts  in  counties 
not  under  township  organization,  between  the  date  of  the  adoption  of  the 
constitution  of  1870  and  the  date  of  the  organization  of  the  board  of  county 
commissioners.  The  words  "present  jurisdiction,"  as  used  in  that  clause, 
did,  however,  limit  the  nature  of  the  additional  powers  that  might  be  con- 
ferred upon  those  courts  to  the  type  of  jurisdiction  exercised  at  the  time 
of  the  adoption  of  the  new  constitution.  For  example,  in  the  case  of 
Shaw  V  Hill,*  the  facts  were  as  follows:  An  act  of  1872  authorized  the 
county  court  to  call  elections  relating  to  the  removal  of  county  seats.  An 
order  for  such  an  election  was  entered  by  the  county  court  in  a  county 
not  under  township  organization.  It  was  objected  that  the  statute  could  not, 
in  view  of  the  provisions  of  this  section,  apply  to  county  courts  in  such 
counties.  The  court  held:  "The  'board  of  county  commissioners,'  which, 
by  section  6  of  article  10  of  the  constitution  of  1870,  will  succeed  the 
present  county  court  in  the  transaction  of  county  business  in  counties  not 
under  township  organization,  has  not  yet  been  elected,  and  will  not  be 
until  in  November,  1873.  The  fourth  section  of  the  schedule  of  the  con- 
stitution of  1870,  continued  in  existence  the  county  court  for  the  tran- 
saction of  county  business  in  counties  which  had  not  adopted  township 
organization,  until  the  election  of  the  'board  of  county  commissioners,'  and 
authorized  such  courts  to  'exercise  their  present  jurisdiction'.  The  words 
•present  jurisdiction'  cannot  be  construed  with  reference  to  laws  in  existence 
at  the  time  the  constitution  went  into  operation.  They  are  not  a  prohibition 
upon  the  legislature  in  the  enactment  of  any  additional  laws  regulating  such 
courts,  but  are  to  be  regarded  as  a  mere  limitation  upon  the  power  to  change 
the  jurisdiction  from  'county  business'  to  civil  or  criminal  causes."  (See 
article  10,  section  6.) 

The  second  clause  of  this  section  was  held  to  have  preserved  a  par- 
ticular jurisdiction  conferred  by  a  special  act  of  1865  upon  a  county  court 
in  a  county  under  township  organization,  until  the  enactment  in  1872  of  a 
general  law  defining  the  jurisdiction  of  all  county  courts.  That  statute, 
which  was  passed  in  compliance  with  the  requirements  of  article  6,  sections 
18  and  29,  as  to  the  uniformity  of  the  jurisdiction  of  county  courts,  neces- 
sarily, in  view  of  those  sections  and  of  this  clause,  had  the  effect  of  re- 
pealing the  special  act  of  1865,  by  implication.^ 

(See  discussion  article  6,  section  18,  subheading,  "Statutory  jurisdic- 
tion," and  article  6,  section  29,  subheadings,  "Purpose  of  the  section,"  and 
"Provisions  self-executing.") 


Section  5.  All  existing  courts  which  are  not  in  this  Constitu- 
tion specifically  enumerated,  shall  continue  in 'existence  and  exer- 
cise their  present  jurisdiction  until  otherwise  provided  by  law. 

This  section  continued  in  existence,  subject  to  legislative  action,  the 
city  courts  created  by  the  General  Assembly  pursuant  to  the  provisions  of 
article  5,  section  1  of  the  constitution  of  1848.  These  courts  were  not 
specifically  enumerated  in  the  constitution  of  1870.  The  constitution  did 
not,    therefore,    prohibit   the    General    Assembly    from    abolishing,    in    1871, 


*67    111.    4.55    (1873);    Broadwell    v   People.    76    111.    554    (1875). 
5  Blake  v  Peckham.  64  111.  362   (1872). 


Schedule,  Section  6  297 

a  particular  city  court  created  by  a  special  act  of  1869.  A  general  city  court 
act  of  1874  was  construed  to  have  impliedly  continued  in  existence  the 
various  city  courts  not  theretofore  abolished,  with  a  uniform  name,  juris- 
diction, and  procedure." 


Section  6.  All  persons  now  filling  any  office  or  appointment 
shall  continue  in  the  exercise  o£  the  duties  thereof,  according  to 
their  respective  commissions  or  appointments,  unless  by  this  Con-^ 
stitution  it  is  otherwise  directed. 


The  last  clause  of  this  section  has  been  construed  in  three  decisions 
of  the  Supreme  Court.  In  the  case  of  People  v  Rumsey",  the  facts  were 
as  follows:  An  Act  of  1867,  applicable  only  to  Cook  county,  authorized  the 
judges  of  the  courts  of  that  county  to  appoint  shorthand  court  reporters.- 
The  reporters  appointed  under  that  act  rendered  services  after  the  adop^ 
tion  of  the  constitution  of  1870.  In  a  mandamus  proceeding  to  compel  the 
county  treasurer  to  pay  the  reporters  for  these  services,  the  court  said: 
"On  the  part  of  the  relators,  it  is  urged  that  they  are  authorized  by  sec- 
tion six  of  the  schedule  to  continue  to  exercise  and  perform  the  duties  of 
their  appointment,  until  they  shall  be  removed,  in  the  manner  prescribed 
by  laws  under  which  they  were  appointed.  The  section  of  the  schedule 
only  authorizes  persons  to  continue  to  fill  any  office  or  appointment  unless 
otherwise  directed  by  the  constitution.  If  the  constitution,  in  any  of  its 
provisions,  has  repealed  the  law  under  which  the  appointment  was  made, 
then  the  appointment  must  cease."  It  was  held  that  the  special  act  under 
which  these  reporters  were  appointed  had  been  impliedly  repealed  by  article 
6,  section  29  of  the  constitution  of  1870,  which  required  uniformity  in  the 
laws  relating  to  courts,  immediately  upon  the  adoption  of  the  constitution. 
(See  discussion  article  6,  section  29,  subheading,  "Provisions  self-execut- 
ing.") i 

In  the  case  of  People  v  Lippincott,^  it  appeared  that  the  General  As- 
sembly, in  1869,  had  created  a  city  court  in  a  particular  city,  pursuant  to 
article  5,  section  1  of  the  constitution  of  1848.  The  relator  had,  in  186^.. 
been  elected  to  fill  the  office  of  judge  of  that  court  for  a  six  year  term. 
In  1871,  the  General  Assembly  had  repealed  the  act  creating  the  court,,, 
and  provided  that  no  officer  thereof  should  receive  any  compensation  for' 
services  rendered  thereafter.  In  a  mandamus  proceeding  to  compel'  the-' 
Auditor  of  Public  Accounts  to  audit  and  allow  the  relator's  claim  for  corm- 
pensation  as  judge  of  the  city  court,  during  the  remainder  of  the  six 
year  term,  the  ccurt  held:  "But  the  counsel  for  relator  places  the  inca- 
pacity of  the  legislature  to  deprive  relator  of  his  office,  upon  section  6  of 
the  schedule  .  .  .  It  was  not  the  purpose  of  this  section  to  continue 
all  offices  otherwise  under  the  control  of  the  legislature,  in  order  that 
every  incumbent  might  be  insured  the  peaceable  possession  of  his  office 
during  his  unexpired  term.  But  the  purpose  Is  indicated  in  the  heading 
to  the  schedule,  viz:  'That  no  inconvenience  may  arise  from  the  altera- 
tions and  amendments  made  in  the  constitution  of  this  state,  and  ta 
carry  the  same  into  complete  effect,  it  is  thereby  ordained  and  declared'; 
and  the  proviso  to  section  6,  'unless  l)y  this  constitution  it  is  otherwise  di- 
rected,' shows  that  it  was  intended  the  right  of  persons  then  in  office  to  con- 
tinue to  exercise  the  duties  thereof,  was  to  be  entirely  subject  to  the  other 
provisions  of  the  instrument.     In  that  connection  we  will  look  at  section 


« People  V   Lippincott.   67   111.   333    (1873);   People  v  City  of  Aurora.   78   III. 
218     (1875);    84    111.    156     (1876);    Wolf    v    Hope.    210    111.    50     (1904). 

''64   111.   44    (1872>;   compare.  People   v  Raymond,   186   111.   407    (1900). 
67   111.   333    (1873). 


298  Schedule,  Section  7 

5  of  the  schedule,  and  immediately  preceding  the  above:  'AH  existing 
courts  which  are  not  in  this  constitution  specifically  enumerated,  shall  con- 
tinue in  existence  and  exercise  their  present  jurisdiction  until  otherwise 
provided  hy  law:  The  court  in  question  is  not  one  of  those  specifically 
enumerated  in  the  constitution.  If  so,  then,  by  the  express  language  just 
quoted,  its  existence  was  continued,  subject  to  the  power  of  the  legislature 
to  determine  it,  which  was  done  by  the  act  of  April  6,  1871,  and  the  re- 
lator was  thereby  constitutionally  deprived  of  his  office."  (See  discussion, 
section  5  of  the  schedule.) 

In  the  case  of  Board  of  Supervisors  v  Christianer,"  the  facts  were  these: 
Christianer  had  been  elected  to  the  office  of  county  superintendent  of 
schools,  in  1869.  In  a  suit  to  recover  compensation  for  services  rendered  as 
county  superintendent  of  schools,  in  1872,  the  court  held:  "Appellee  having 
been  elected  prior  to  the  adoption  of  the  present  constitution,  the  question 
arises  whether  his  compensation  is  to  be  fixed  under  the  law  of  1867,  or 
under  the  provisions  of  the  act  of  1872.  The  6th  section  of  the  schedule  to 
the  constitution  declares  that  all  persons  then  filling  any  office  or  appoint- 
ment shall  continue  in  the  exercise  of  the  duties  thereof,  according  to  their 
respective  commissions  or  appointments.  Appellee  was  within  this  saving 
clause,  and  could  hold  his  office  for  the  period  for  which  he  was  elected, 
viz:  for  four  years  from  November,  1869.  The  10th  section  of  article  10 
provides  for  fixing  the  compensation  of  all  county  officers  by  the  county 
board,  but  it  is  expressly  stated,  in  the  11th  section,  'the  compensation 
herein  provided  for  shall  apply  to  officers  hereafter  elected.'  It  seems 
it  was  the  intention  of  the  framers  of  the  constitution,  that  persons  then 
occupying  any  county  office  should  not  only  continue  in  the  exercise  of  its 
duties,  but  should  enjoy  the  emoluments  attached  thereto  by  general  laws, 
all  fees  allowed  by  special  laws  having  been  repealed  by  the  adoption 
of  the  constitution.  We  are  inclined  to  the  opinion,  therefore,  that  this 
clause  of  the  constitution  is  a  limitation  on  the  power  of  county  boards 
to  fix  or  change  the  compensation  of  officers  previously  elected.  In  this 
view  of  the  several  constitutional  provisions  bearing  on  this  question,  we 
must  regard  the  act  of  1872  as  only  intended  to  have  a  prospective  action 
and  to  apply  to  county  officers  that  should  be  elected  after  the  adoption 
of  the  constitution." 


Section  7.  On  the  day  this  Constitution  is  submitted  to  the 
people  for  ratification,  an  election  shall  be  held  for  judges  of  the  Su- 
preme Court  in  the  second,  third,  sixth  and  seventh  judicial  election 
districts  designated  in  this  Constitution,  and  for  the  election  of  three 
judges  of  the  Circuit  Court  in  the  county  of  Cook,  as  provided  for  in 
the  article  of  this  Constitution  relating  to  the  Judiciary,  at  which 
election,  every  person  entitled  to  vote,  according  to  the  terms  of 
this  Constitution,  shall  be  allowed  to  vote,  and  the  election  shall  be 
otherwise  conducted,  returns  made  and  certificates  issued,  in  accord- 
ance with  existing  laws,  except  that  no  registry  shall  be  required  at 
said  election:  Provided,  that  at  said  election  in  the  county  of  Cook 
no  elector  shall  vote  for  more  than  two  candidates  for  circuit  judge. 
If,  upon  canvassing  the  votes  for  and  against  the  adoption  of  this 
Constitution,  it  shall  appear  that  there  has  been  polled  a  greater 
number  of  votes  against  than  for  it,  then  no  certificates  of  election 
shall  be  issued  for  any  of  said  Supreme  or  Circuit  Judges. 


»68   111.    453    (1873). 


Schedule,  Section  8  299 

(As  to  the  Supreme  Court  judges,  see  discussion  article  6,  section  6. 
As  to  the  circuit  judges,  see  article  6.  section  23.) 


Section  8.  This  Constitution  shall  be  submitted  to  the  people 
of  the  State  of  Illinois  for  adoption  or  rejection,  at  an  election  to  be 
held  on  the  first  Saturday  in  July  in  the  year  of  our  Lord  one  thous- 
and eight  hundred  and  seventy,  and  there  shall  be  separately  sub- 
mitted  at  the  same  time,  for  adoption  or  rejection,  sections  nine,  ten,, 
eleven,  twelve,  thirteen,  fourteen  and  fifteen,  relating  to  railroads,  in 
the  article  entitled  "Corporations ;"  the  article  entitled  "Counties ;" 
the  article  entitled  "Warehouses ;"  the  question  of  requiring  a  three- 
fifths  vote  to  remove  a  county  seat ;  the  section  relating  to  the  Illi- 
nois Central  Railroad ;  the  section  in  relation  to  minority  representa- 
tion ;  the  section  relating  to  municipal  subscriptions  to  railroads  or 
private  corporations ;  and  the  section  relating  to  the  Canal.  Every 
person  entitled  to  vote  under  the  provisions  of  this  Constitution,  as 
defined  in  the  article  in  relation  to  "Suffrage"  shall  be  entitled  to 
vote  for  the  adoption  or  rejection  of  this  Constitution,  and  for  or 
against  the  articles,  sections  and  question  aforesaid,  separately  sub- 
mitted ;  and  the  said  qualified  electors  shall  vote  at  the  usual  places 
of  voting,  unless  otherwise  provided ;  and  the  said  election  shall  be 
conducted,  and  returns  thereof  made  according  to  the  laws  now  in 
force  regulating  general  elections,  except  that  no  registry  shall  be 
required  at  said  election :  Provided,  however,  that  the  polls  shall  be 
kept  open  for  the  reception  of  ballots  until  sunset  of  said  day  of 
election. 


The  meaning  of  the  term  "qualified  electors,"  as  used  in  this  section, 
was  commented  upon  in  the  case  of  Beardstown  v  Virginia.^"  In  that  case 
while  construing  the  provision  of  section  1  of  article  7,  "who  was  an^ 
elector  in  this  state  on  the  first  day  of  April,  in  the  year  of  our  Lord,  1848',"' 
the  court  said:  "Reference  is  made  by  appellants  to  the  use  of  the  words' 
'qualified  electors,'  in  the  8th  section  of  the  schedule  of  the  constitution' 
of  1870,  and  in  the  11th  section  of  the  schedule  of  the  constitution  of  1848;, 
as  indicating  a  distinction  made  by  the  constitution  between  'electors'  and 
'qualified  electors.'  The  words  in  the  schedule  of  the  constitution  of  1870 
are  used  in  this  connection:  'Every  person  entitled  to  vote  under  the  pro- 
visions of  this  constitution,  as  defined  in  the  article  in  relation  to  'suf- 
frage,' shall  be  entitled  to  vote  for  the  adoption  or  rejection  of  this  con- 
stitution, and  for  or  against  the  articles,  sections,  and  questions  aforesaid, 
separately  submitted;  and  the  said  qualified  electors  shall  vote  at  the  usual 
places  of  voting.'  etc.  And  the  words  are  used  in  the  same  connection  in 
the  schedule  of  the  constitution  of  1848.  Now,  plainly,  the  words  'qualified 
electors,'  are  not  here  used,  in  any  way,  in  contradistinction  from  'electors,' 
but  merely  as  expressive  of  the  class  of  persons  who  might  vote  at  the 
approaching  election  upon  the  question  of  the  adoption  of  the  constitution. 
'The  said  qualified  electors  shall  vote,'  etc.,  that  is,  the  persons  having- 
the  said  qualifications  of  voters  as  named  in  the  preceding  clause.  The 
persons  who, 'on  the  first  day  of  April,  1848,  were  electors,  were  qualified 


10  76   111.   34    (1875). 


300  Schedule,  Sections  9,  10 

electors;  and  vice  versa;  there  is  no  distinction  between  them,  and  the 
constitution  does  not  sanction  the  idea  of  a  distinction." 

(As  to  the  meaning  of  the  word  "electors,"  see  discussion  article  7,  sec- 
tion  1,  subheading,   "Unnaturalized  aliens.") 

(All  of  the  provisions  required  by  this  section  to  be  submitted  to  the 
people  separately,  were  adopted.  As  to  the  form  of  the  ballot  used  at  the 
election,  see  section  10  of  the  schedule.  As  to  the  date  when  the  separate 
.sections  became  effective,  see  discussion,  section  12  of  the  schedule). 


Section  9.  The  Secretary  of  State  shall,  at  least  twenty  days 
before  said  election,  cause  to  be  delivered  to  the  County  Clerk  of 
each  county  blank  poll-books,  tally  lists  and  forms  of  return,  and 
twice  the  number  of  properly  prepared  printed  ballots  for  the  said 
election  that  there  are  voters  in  such  county,  the  expense  whereof 
shall  be  audited  and  paid  as  other  public  printing  ordered  by  the  Se- 
cretary of  State  is,  by  law,  required  to  be  audited  and  paid ;  and  the 
several  county  clerks  shall,  at  least  five  days  before  said  election, 
cause  to  be  distributed  to  the  board  of  election,  in  each  election  dis- 
trict in  their  respective  counties,  said  blank  poll-books,  tally-lists, 
forms  of  return,  and  tickets. 


Section  10.     At  the  said  election  the  ballots  shall  be  in  the  fol- 
lowing form : 


NEW  CONSTITUTION  TICKET 

For  all  the  propositions  on  this  ticket  which  are  not  cancelled 
with  ink  or  pencil;  and  against  all  propositions  which  are  so  can- 
celled. 

For  the  new  Constitution. 

For  the  sections  relating  to  railroads  in  the  article  entitled 
"Corporations." 

For  the  article  entitled  "Counties." 

For  the  article  entitled  "Warehouses." 

For  a  three-fifths  vote  to  remove  County  Seats. 

For  the  section  relating  to  the  Illinois  Central  Railroad. 

For  the  section  relating  to  Minority  Representation. 

For  the  section  relating  to  Municipal  Subscriptions  to  Railroads 
or  Private  Corporations. 

For  the  section  relating  to  the  Canal. 

Each  of  said  tickets  shall  be  counted  as  a  vote  cast  for  each 
proposition  thereon  not  cancelled  with  ink  or  pencil,  and  against 
each  proposition  so  cancelled,  and  returns  thereof  shall  be  made 
accordingly  by  the  judges  of  election. 


Schedule,  Sections  11,  12  301 

Section  11.  The  returns  of  the  whole  vote  cast,  and  of  the 
votes  for  the  adoption  or  rejection  of  this  Constitution,  and  for  or 
against  the  articles  and  sections  respectively  submitted,  shall  be 
made  by  the  several  county  clerks,  as  is  now  provided  by  law,  to 
the  Secretary  of  State,  within  twenty  days  after  the  election;  and 
the  returns  of  the  said  votes  shall,  within  five  days  thereafter,  be  ex- 
amined and  canvassed  by  the  Auditor,  Treasurer  and  Secretary  of 
State,  or  any  two  of  them,  in  the  presence  of  the  Governor,  and 
proclamation  shall  be  made  by  the  Governor,  forthwith  of  the  result 
of  the  canvass. 


Section  12.  If  it  shall  appear  that  a  majority  of  the  votes 
polled  are  "For  the  New  Constitution,"  then  so  much  of  this  Con- 
stitution as  was  not  separately  submitted  to  be  voted  on  by  articles 
and  sections,  shall  be  the  supreme  law  of  the  State  of  Illinois,  on 
and  after  Monday  the  eighth  day  of  August,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy ;  but  if  it  shall  appear  that 
a  majority  of  the  votes  polled  were  '"Against  the  New  Constitution,'' 
then  so  much  thereof  as  was  not  separately  submitted  to  be  voted  on 
by  articles  and  sections,  shall  be  null  and  void. 

If  it  shall  iippear  that  a  majority  of  the  votes  polled,  are  "for  the 
sections  relating  to  Railroads  in  the  article  entitled  "Corporations" ; 
sections  nine,  ten,  eleven,  twelve,  thirteen,  fourteen  and  fifteen,  re- 
lating to  Railroads  in  the  said  article,  shall  be  a  part  of  the  Consti- 
tution of  this  State ;  but  if  a  majority  of  said  votes  are  against  such 
sections,  they  shall  be  null  and  void.  If  a  majority  of  the  votes 
polled  are  for  the  article  entitled  "Counties,"  such  article  shall  be 
part  of  the  Constitution  of  this  State  and  shall  be  substituted  for 
article  seven,  in  the  present  Constitution  entitled  "Counties";  but 
if  a  majority  of  said  votes  are  against  such  article,  the  same  shall  be 
null  and  void.  If  a  majority  of  the  votes  polled  are  "for  the  article 
entitled  "Warehouses,"  such  article  shall  be  part  of  the  Constitu- 
tion of  this  State,  but  if  a  majority  of  the  votes  are  against  said  arti- 
cle, the  same  shall  be  null  and  void.  If  a  majority  of  the  votes 
polled  are  for  either  of  the  sections  separately  submitted,  relating 
respectively  to  the  "Illinois  Central  Railroad,"  "Minority  Repre- 
sentation," "Municipal  Subscriptions  to  Railroads  or  Private  Cor- 
porations," and  the  "Canal,"  then  such  of  said  sections  as  shall  re- 
ceive such  majority  shall  be  a  part  of  the  Constitution  of  this  State ; 
but  each  of  said  sections  so  separately  submitted  against  which,  re- 
spectively, there  shall  be  a  majority  of  the  votes  polled,  shall  be  null 
and  void:  Provided,  that  the  section  relating  to  "Minority  Repre- 
sentation," shall  not  be  declared  adopted  unless  the  portion  of  the 
Constitution  not  separately  submitted  to  be  voted  on  by  articles  and 
sections  shall  be  adopted,  and  in  case  said  section  relating  to  "Mi- 
nority Representation"  shall  become  a  portion  of  the  Constitution, 
it  shall  be  substituted  for  sections  seven  and  eight  of  the  Legislative 
Article.    If  a  majority  of  the  votes  cast  at  such  election  shall  be  for 


302  Schedule,  Sections  13,  14 

a  three-fifths  vote  to  remove  a  county  seat,  then  the  words  "a  ma- 
jority" shall  be  stricken  out  of  section  four  of  the  Article  on  Coun- 
ties, and  the  words  "three-fifths"  shall  be  inserted  in  lieu  thereof; 
and  the  following  words  shall  be  added  to  said  section,  to-wit :  "'But 
when  an  attempt  is  made  to  remove  a  county  seat  to  a  point  nearer 
to  the  center  of  a  county,  then  a  majority  vote  only  shall  be  neces- 
sary." If  the  foregoing  proposition  shall  not  receive  a  majority  of 
the  votes,  as  aforesaid,  then  the  same  shall  have  no  effect  whatever. 


Although  the  constitution,  as  a  whole,  pursuant  to  the  provisions  of  the 
first  paragraph  of  this  section,  became  effective  August  8,  1870,  the  articles 
and  sections  required  by  section  8  of  the  schedule  to  be  submitted  separately, 
became  effective  immediately  upon  their  adoption  by  the  vote  of  the  people, 
on  July  2,   1870." 


Section  13.  Immediately  after  the  adoption  of  this  Constitu- 
tion, the  Governor  and  Secretary  of  State  shall  proceed  to  ascertain 
and  fix  the  apportionment  of  the  State  for  members  of  the  first 
House  of  Representatives  under  this  Constitution.  The  apportion- 
ment shall  be  based  upon  the  Federal  census  of  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy  of  the  State  of  Illinois,  and 
shall  be  made  strictly  in  accordance  with  the  rules  and  principles 
announced  in  the  article  on  the  Legislative  Department  of  this  Con- 
stitution: Provided,  that  in  case  the  Federal  census  aforesaid  can 
not  be  ascertained  prior  to  Friday,  the  twenty-third  day  of  Septem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sev- 
enty, then  the  said  apportionment  shall  be  based  on  the  State  cen- 
sus of  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
five,  in  accordance  with  the  rules  and  principles  aforesaid.  The  Gov- 
ernor shall,  on  or  before  Wednesday,  the  twenty-eighth  day  of  Sep- 
tember, in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy,  make  official  announcement  of  the  said  apportionment, 
under  the  great  seal  of  the  State;  and  one  hundred  copies  thereof, 
duly  certified,  shall  be  forthwith  transmitted  by  the  Secretary  of 
State  to  each  county  clerk  for  distribution. 


(As  to  legislative  apportionments,  generally,  see  discussion  article  4, 
section  6.  As  to  the  apportionment  made  by  the  Governor  and  Secretary  of 
State,  pursuant  to  this  section,  see  House  Journal  1871,  first  session,  pp. 
33-34,  58-62,  62-64.) 


Secion  14.  The  districts  shall  be  regularly  numbered,  by  the 
Secretary  of  State,  commencing  with  Alexander  County  as  Number 
One,  and  proceeding  then  northwardly  through  the  State,  and  ter- 

"Schall    V    Bowman.    62    111.    321    (1872). 


Schedule,  Sections  15-17  303 

minating  with  the  county  of  Cook ;  but  no  county  shall  be  numbered 
as  more  than  one  district,  except  the  County  of  Cook,  which  shall 
constitute  three  districts,  each  embracing  the  territory  contained  in 
the  now  existing  representative  districts  of  said  county.  And  on  the 
Tuesday  after  the  first  Monday  in  November,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy,  the  members  of  the 
first  House  of  Representatives  under  this  Constitution  shall  be 
elected  according  to  the  apportionment  fixed  and  announced  as 
aforesaid,  and  shall  hold  their  offices  for  two  years,  and  until  their 
successors  shall  be  elected  and  qualified. 


(As  to  legislative  apportionments,  generally,  see  discussion  article  4,  sec- 
tion 6.) 


Section  15.  The  Senate,  at  its  first  session  under  this  Consti- 
tution, shall  consist  of  fifty  members,  to  be  chosen  as  follows:  At 
the  General  Election  held  on  the  first  Tuesday  after  the  first  Mon- 
day of  November,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  seventy,  two  Senators  shall  be  elected  in  districts  where 
the  term  of  Senators  expire  on  the  first  Monday  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  seventy-one,  or 
where  there  shall  be  a  vacancy,  and  in  the  remaining  districts  one 
Senator  shall  be  elected.  Senators  so  elected  shall  hold  their  office 
two  years. 


(As  to   legislative   apportionments,   generally,   see   discussion   article   4, 
section   6.) 


Section  IG.  The  General  Assembly,  at  its  first  session  held 
after  the  adoption  of  this  Constitution,  shall  proceed  to  apportion 
the  State  for  members  of  the  Senate  and  House  of  Representatives, 
in  accordance  with  the  provisions  of  the  article  on  the  Legislative 
Department. 


(As  to   legislative  apportionments,   generally,   see   discussion   article   4, 
section  6.) 


Section  17.  When  this  constitution  shall  be  ratified  by  the 
people,  the  Governor  shall  forthwith,  after  having  ascertained  the 
fact,  issue  writs  of  election  to  the  sheriffs  of  the  several  counties  of 
this  State,  or  in  case  of  vacancies,  to  the  coroners,  for  the  election 
of  all  the  officers,  the  time  of  whose  election  is  fixed  by  this  consti- 
tution or  schedule,  and  it  shall  be  the  duty  of  said  sheriffs  or  coro- 


304  Schedule,  Section  18 

ners  to  give  such  notice  of  the  time  and  place  of  said  election  as  is 
now  prescribed  by  law. 


(See  discussion,  section  1  of  the  schedule.) 


Section  18.  All  laws  of  the  State  of  Illinois,  and  all  official 
writings,  and  the  Executive,  Legislative  and  Judicial  proceedings, 
shall  be  conducted,  preserved  and  published  in  no  other  than  the 
English  language. 


In  general.  "It  does  not  militate  against  the  continuing  vitality  of 
this  section  that  it  is  found  in  the  schedule  and  not  in  the  body  of  the 
constitution,  for  a  schedule  to  a  constitution  forms  a  part  of  such  constitu- 
tion, and  is  of  equal  authority  therewith.  The  provisions  most  usually 
found  in  schedules  are  of  temporary  character,  and  for  the  purpose  of  pre- 
venting inconvenience  and  confusion  upon  the  constitution  taking  effect; 
but  from  the  very  nature  of  the  provision  in  question  it  is  permanent  in 
its  scope  and  operation."^-    The  provisions  of  this  section  are  self-executing." 


Official  writings.  The  reports  and  notices  required  by  law  to  be  fur- 
nished by  municipal  officers  constitute  "official  writings,"  as  that  term 
is  used  in  this  section.  A  city  may,  therefore,  be  enjoined  from  publishing 
these  reports  and  notices  in  the  German  language  in  a  German  newspaper." 
The  Attorney  General  has  ruled  that  the  term  "official  writings"  includes 
the  contents  of  the  charters  of  domestic  insurance  companies,  and  that  a 
proposed  company  having  a  name  expressed  in  the  German  language  can- 
not, therefore,  be  organized  under  the  laws  of  this  state.''  The  Attorney 
General  has  also  ruled  that  the  term  includes  the  annual  financial  state- 
ments required  by  law  to  be  published  by  insurance  companies,  so  as  to 
invalidate  the  publication  of  such  statements  in  newspapers  printed  in  any 
other  than  the  English  language.^^ 


Legislative  proceedings.  The  ordinances  enacted  by  a  city,  a  board  of 
forest  preserve  commissioners,  and  by  a  board  of  county  commissioners 
have  been  held  to  constitute  "legislative  proceedings"  as  that  term  is  used 
in  this  section.  This  section  therefore,  prohibits  the  publication  of  such 
ordinances  in  the  German  language,  or  in  the  English  language,  in  a  German 
newspaper.^^ 


Judicial  proceedings.  The  term  "judicial  proceedings,"  as  used  in 
this  section,  has  been  held  to  include  special  assessment  notices,  and  ad- 
ministrators' notices  of  adjustments  of  claims  so  as  to  prohibit  their  pub- 


is City   of   Chicago   v   McCoy,    136    111.    344    (1891). 
13  Stein  v   Meyers,    253    111.    199    (1912). 
"City   of   Chicago   v   McCoy,    136    111.    344    (1891). 
IS  Report  Attorney   General    1916,   p.    258. 
i»  Report  Attorney  General  1916.  p.   271. 

"City   of  Chicago   v   McCoy,    136   111.    344    (1891);   Perkins   v   Commissioners 
of  Cook  County,  271  111.  449,  at  p.  474   (1916);  People  v  Day.  277  111.  543    (1917). 


Schedule,  Sections  19-21  305 

lication  in  a  German  newspaper,  whether  the  notices  are  printed  in  English 
or  in  German." 

This  section  does  not  require  all  court  proceedings  to  be  conducted  in 
English.  For  example,  it  has  been  held  that  this  section  has  no  application 
to  oral  testimony,  depositions,  or  documentary  evidence."  Nor  does  it 
operate  to  prevent  the  minutes  and  notes  from  which  the  clerk  makes  up 
the  record,  from  being  entered  in  an  unusual  system  of  abbreviations,  such 
as  "Petit,  Oct.  17,  1913,  Jury  verd.  fdg.  issue  for  pltf.  das.  at  $9,500.00  & 
costs.  Jdg.  on  fdg."^°  The  requirement  of  this  section,  that  judicial  pro- 
ceedings be  conducted  in  the  English  language,  is  confined  to  the  formal 
record  history  of  the  cause,  as  distinguished  from  the  temporary  memoranda 
made  by  the  clerk.  For  example,  a  judgment  was  held  void  because  the 
formal  and  final  record  thereof  was  entered  in  a  system  of  abbreviations 
which  would  be  unintelligible  to  an  English  speaking  person,  such  as 
"Fndg.  deft.  g.  withh.  prem.  descr.  in  complt.;  judg.  on  fndg.  &  C."^ 

The  Attorney  General  ruled  that  this  section  requires  all  judicial  pro- 
ceedings to  be  preserved,  so  as  to  render  invalid  a  proposed  act  of  1917  re- 
quiring the  destruction  of  the  records  of  the  disposition  of  cases  of  delin- 
quent children,  when  delinquency  did  not  recur  within  two  years.  Upon 
the  basis  of  this  ruling,  the  Governor  vetoed  the  bill.-^ 


Section  19.     The  General  Assembly  shall  pass  all  laws  neces- 
sary to  carry  into  effect  the  provisions  of  this  Constitution. 


Section  20.  The  circuit  clerks  of  the  different  counties  having 
a  population  over  sixty  thousand,  shall  continue  to  be  Recorders 
(ex  officio)  for  their  respective  counties,  ungler  this  constitution, 
until  the  expiration  of  their  respective  terms. 


(See  article  10,  sections  8.  9.) 


Section  21.  The  judges  of  all  courts  of  record  in  Cook  county 
shall,  in  lieu  of  any  salary  provided  for  in  this  Constitution,  receive 
the  compensation  now  provided  by  law  until  the  adjournment  of  the 
first  session  of  the  General  Assembly  after  the  adoption  of  this  Con- 
stitution. 


This  section  operated  to  limit  the  time  when  judges  of  the  courts  of 
record  in  Cook  County  were  to  begin  to  receive  the  compensation  provided 
for  in  the  constitution  of  1870,  to  the  date  of  the  adjournment  sine  die  of 
the  regular  sesnion  of  the  General  Assembly  of  1871-72. 

The  "compensation  now  provided  by  law,"  for  the  judge  of  the  old 
circuit   court   of   Cook   County,   consisted,   under   the   constitution    of   1848 

i«  People  v  McCoy.  136  111.  344   (1891);  Report  Attorney  General  1900,  p.  350. 

"Loehde    v    Glos,    265    111.    401     (1914). 

^«  People    v    Petit.    266    111.    628    (1915). 

21  Stein  V  Meyers.   253   111.  199    (1912);  Loehde  v  Glos,   265   111.   401    (1914). 

23  Veto  Messages  1917,  p.  51. 


306  Schedule,  Sections  22,  23 

and  the  statutory  provisions  in  force  in  1870,  of  $1,000  per  annum  from  the 
state,  $1,500  per  annum  from  the  county,  and  of  certain  docket  fees.  The 
new  constitution  (article  6,  section  23)  provided  that  the  circuit  court  of 
Cook  county  should  consist  of  five  judges.  Section  16  of  article  6  of  that 
instrument  provided  that  the  circuit  judges  outside  of  Cook  county  should 
receive  $3,000  per  annum  from  the  date  of  the  adoption  of  the  new  con- 
stitution, until  otherwise  provided  by  law.  Section  25  of  article  6  pro- 
vided that  the  circuit  judges  in  Cook  county  "shall  receive  the  same  salaries, 
payable  out  of  the  state  treasury,  as  is  er  may  be  paid  from  said  treasury 
to  the  circuit  judges  ...  of  the  state,  and  such  further  compensation 
to  be  paid  by  the  county  of  Cook  as  is  or  may  be  provided  by  law."  In  a 
mandamus  proceeding  begun  in  1872,  to  compel  the  payment  by  the  state 
to  a  judge  of  the  circuit  court  of  Cook  county,  who  had  been  elected  under 
the  new  constitution,  of  a  salary  of  $3,000  per  annum,  the  court  held  that  all 
of  the  judges  of  the  circuit  court  of  Cook  county,  until  the  adjournment  of 
the  first  session  of  the  General  Assembly,  were  entitled  under  the  pro- 
visions of  section  21  of  the  schedule  to  a  salary  from  the  state  of  but  $1,000 
per  annum.  The  court  suggested,  however,  that  each  of  the  new  judges  of 
the  circuit  court  of  that  county  might  also  be  entitled  to  the  $1,500  per 
annum  paid  by  the  county  to  the  single  judge  of  the  old  circuit  court,  and 
also  to  the  docket  fees  received  by  that  judge.^ 

In  a  later  case  it  appeared  that:  "The  legislature  commenced  its  first 
session  on  the  4th  of  January,  1871,  and  on  the  17th  day  of  April,  of  that 
year,  after  winding  up  the  business  in  the  way  usual  before  an  adjournment 
sine  die,  in  pursuance  of  a  resolution  adopted  before,  both  houses  were  de- 
clared by  the  respective  presiding  officers  adjourned  to  the  15th  of  No- 
vember, 1871;  that  the  Governor  of  the  state  convened  the  General  Assembly, 
for  certain  purposes  specified  in  his  proclamation,  in  June,  1871,  and  after 
disposing  of  the  business  for  which  the  legislature  was  assembled,  both 
houses  adjourned  in  the  same  month  without  day;  that  afterwards  the 
General  Assembly  was  by  the  Governor  again  convened  on  the  13th  day  of 
October,  1871,  to  consider  certain  subjects  mentioned  in  his  proclamation, 
and  after  disposing  of  the  business  presented  by  the  Governor,  the  General 
Assembly  during  the  same  month  adjourned  without  day.  At  the  time  be- 
fore fixed,  on  the  15th  day  of  November,  1871,  the  General  Assembly  re- 
assembled, and  continued  to  transact  business  until  April  12,  1872,  when  it 
adjourned  without  day."**  The  court  held  that  the  adjournment  on  April 
12,  1872,  was  "the  adjournment  of  the  first  session  of  the  General  Assembly," 
contemplated  by  the  provisions  of  the  section  under  consideration. 


Section  22.  The  present  judge  of  the  circuit  court  of  Cook 
county  shall  continue  to  hold  the  circuit  court  of  Lake  county  until 
otherwise  provided  by  law. 


Section  23,  When  this  constitution  shall  be  adopted,  and  take 
effect  as  the  supreme  law  of  the  State  of  Illinois,  the  two-mill  tax 
provided  to  be  annually  assessed  and  collected  upon  each  dollar's 
worth  of  taxable  property,  in  addition  to  all  other  taxes,  as  set  forth 
in  article  fifteen  of  the  now  existing  constitution,  shall  cease  to  be 
assessed  after  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy. 

-»  People  v   Lippincott,   63   111.   504    (1872). 
-^People   v   Auditor,    64    111.    82    (1872). 


Schedule,  Sections  24,  25  307 

Section  24,  Nothing  contained  in  this  Constitution  shall  be  so 
construed  as  to  deprive  the  General  Assembly  of  power  to  author- 
ize the  city  of  Quincy  to  create  any  indebtedness  for  railroad  or 
municipal  purposes  for  which  the  people  of  said  city  shall  have  voted 
and  to  which  they  shall  have  given,  by  such  vote,  their  assent,  prior 
to  the  thirteenth  day  of  December,  in  the  year  of  our  Lord  one 
thousand  and  eight  hundred  and  sixty-nine :  Provided,  that  no  such 
indebtedness,  so  created,  shall,  in  any  part  thereof  be  paid  by  the 
State,  or  from  any  State  revenue  tax  or  fund,  but  the  same  shall  be 
paid,  if  at  all,  by  the  said  city  of  Quincy  alone,  and  by  taxes  to  be 
levied  upon  tlie  taxable  property  thereof;  and  provided,  further, 
that  the  General  Assembly  shall  have  no  power  in  the  premises, 
that  it  could  not  exercise  under  the  present  constitution  of  this 
State. 


Under  the  constitution  of  1848,  the  General  Assembly  had  the  power  to 
authorize  the  corporate  authorities  of  a  city  to  subscribe  to  the  capital 
stock  of  a  railroad  company,  without  a  vote  of  the  people.  On  August  7, 
1869,  under  a  city  ordinance,  the  people  of  the  city  of  Quincy  voted  in 
favor  of  authorizing  the  corporate  authorities  of  the  city  to  make  a  sub- 
scription to  the  capital  stock  of  a  railroad  company.  No  statute  had 
been  passed  by  the  General  Assembly  empowering  the  city  to  hold  ijtock 
in  a  railroad  company,  or  authorizing  a  vote  of  the  people  of  the  city  on  such 
a  question.  The  making  of  the  subscription,  therefore,  was  deferred  until 
enabling  legislation  of  this  character  could  be  enacted.  On  December  13, 
1869,  the  date  referred  to  in  the  section  cruder  discussion,  the  constitutional 
convention  met.  This  convention  inserted  a  provision  in  the  new  consti- 
tution prohibiting  municipalities  from  subscribing  to  the  capital  stock  of 
any  railroad  or  private  corporation.  This  provision  did  not,  however,  apply 
to  subscriptions  authorized,  under  existing  laws,  by  a  vote  of  the  people, 
prior  to  the  adoption  of  the  constitution.  (See  dis(3Ussion.  separate  sec- 
tion 2).  "The  effect  of  this  provision  of  the  constitution  would  clearly 
have  defeated  the  proposed  Quincy  subscription,  as  the  vote  then  had  was 
not  under  an  existing  law.  The  convention,  with  the  view,  no  doubt,  of 
leaving  the  proposed  Quincy  subscription  unaffected  by  this  clause  of  the 
constitution,  adopted  section  24  of  the  schedule."-"  At  the  iirst  session 
of  the  General  Assembly  after  the  adoption  of  the  constitution,  an  act  was 
passed  authorizing  the  city  to  proceed  with  the  subscripiion  voted  for  on 
August  7,  1869.  The  Supreme  Court  held  that  this  act  was  validly  enacted, 
pursuant  to  the  provisions  of  the  section  under  consideration,  saying: 
"We  are,  therefore,  of  opinion,  that  while  section  24  of  the  schedule  did 
not,  in  the  least,  legalize  or  sanction  what  had  been  done  by  the  voters 
of  the  city,  its  obvious  intent  and  effect  were  to  leave  the  matter  and 
the  power  of  the  legislature  over  it  unaffected  by  the  constitution  of  1870; 
in  other  words,  to  leave  the  vote  and  the  power  of  the  legislature  to  confer 
the  right  upon  the  city  to  take  stock,  precisely  a^i  they  would  have  been 
under  the  constitution  of  1848."^" 


Section  25.     In  case  this  Constitution,  and  the  articles  and  sec- 
tions submitted  separately,  be  adopted,  the  existing  Constitution 


^Q.    M.   &   p.    Rv.    Co.    v   Morris,    84    lU.    410    (1877). 

26  Q.   M.  &  p.   Ry.  Co.    V  Morris,    84   111.   410    (1877);    compare   veto   message, 
Senate  Journal,  1871,  p.  377;   Quincy  v  Cooke,   107  U.  S.   549    (1882). 


308  Schedule,  Section  26 

shall  cease  in  all  its  provisions,  and  in  case  this  Constitution  be 
adopted,  and  anyone  or  more  of  the  articles  or  sections  submitted 
separately  be  defeated,  the  provisions  of  the  existing  constitution,  if 
any,  on  the  same  subject  shall  remain  in  force. 


Section  26.  The  provisions  of- this  constitution  required  to  be 
executed  prior  to  the  adoption  or  rejection  thereof  shall  take  effect 
and  be  in  force  immediately. 


309 


INDEX  TO  CONSTITUTION  OF  1870.^ 


ACCUSATION 

See   Offenses 

ACTS 

See    General    Assembly 

ADJOURNMENT    OF    GENERAL    ASSEMBLY 
Governor,  powers,  art.  5,  sec.  9 
limitations,  art.  4,  sec.  10 

AID 

municipal 
railroads   or   private  corporations,    separate 

sec.   3 
sectarian    institutions    or   purposes,    art.    8, 
sec.   3 
state 
railroads    or    canals,    separate    sec.    4 
sectarian    institutions    or    purposes,    art.    8, 
sec.  3 

AMENDMENT    OF    LAWS 
See   General  Assembly 

AMENDMENTS    TO    CONSTITUTION 
conventions,   art.    14,   sec.    1 
legislative    proposals,    art.     14,    sec.    2 

APPEALS  AND   WRITS   OF  ERROR 

courts 

appellate,    art.   6,   sec.    11 

circuit,   art.   6,   sec.    11 

county,  art.  6,  sec.    19 

supreme,  art.  6,  sees.  8,  11 
criminal  cases,   Cook  County,  art  6,  sec.   26 

APPELLATE    COURTS 
See    Courts 

APPOINTMENTS 
See   General  Assembly,    Governor 


APPORTIONMENT 
judicial,   art.   6,    sec.   5 
senatorial,    art.    4,    sec.    6 

APPROPRIATIONS 

aggregate,   how   increased,   art.   4,   sec.   18 

canals,   in  aid   of,    separate   see.    4 

deficiency,   art.   4,   sees.   18,   19 

diversion,   art.   4,   sec.    17 

expenditure    of,    warrant    of    Auditor,    art.    4, 

sec.    17 
expiration,  art.  4,   sec.   18 
how   made 

by  law,  art.   4,  sec.   17 

items   and   sections,    art.   5,   sec.    16 

private  laws,  art.  4,  ,sec.  16 
items.    Governor  may  veto,  art.   5,    sec.    16 
necessary,    duty    of    General     Assembly,     art 

4,   sec.    18 
revenue  not  to  be  exceeded,  art.  4,  sec.   18 
salaries  of  state  officers,  art.  4,  sec.   16 

ARMY 

iSee  Militia 
ARREST 
General    Assembly,    members    of,    privileges, 
art.   4,   sec.    14 

ASSEMBLY 
peaceable,   right  of,   secured,  art.   2,  sec.    17 

ATTORNEY  GENERAL 

See  Elections 
duties,    art.    5,    sec.    1 
election,  art.  5,   sec.  3 
eligibility  to  other  offices,  art.  5,  sec.  5 
report  to    Governor,   art.    5,   sees.    20,    21 
residence  at  capital,  art.  5,  sec.    1 
salary,   art.   5,   sec.   23 
term  of  office,  art.  5,  sec.   1 
vacancy,  art.    5,   sec.   20 


^  The  Constitution  of  1870  contains  five  separate  sections.  Four  of  these 
separate  sections  were  submitted  and  adopted  at  the  same  time  as  the  com- 
plete constitution.  The  separate  section  relating-  to  convict  labor  was  adopted 
as  an  amendment  to  the  constitution  in  1886.  Under  the  terms  of  section  12 
of  the  schedule  the  separate  section  relating  to  minority  representation,  if 
adopted,  was  to  be   substituted  for  sections  7   and  8  of  article  4. 

While  the  original  separate  sections  are  not  designated  by  numbers  it  has 
been  deemed  necessary  for  the  purposes  of  this  index,  to  number  them.  In  this 
index  the  separate  section  relating  to  the  Illinois  Central  railroad  is  designated 
as  separate  section  1;  the  separate  section  relating  to  minority  representation 
is  considered  separate  section  2;  that  relating  to  municipal  subscriptions  to 
ra,ilroads  or  private  corporations  is  designated  separate  section  3;  that  relating 
to  the  canal  as  separate  section  4;  and  that  relating  to  convict  labor  as  sep- 
arate  section   5. 

In  the  text  of  the  Constitution  of  1870,  as  it  appears  in  this  volume,  the 
separate  section  relating  to  minority  representation, 'having  been  adopted,  ap- 
pears as  sections  7  and  8  of  article  4,  and  in  this  index  all  references  con- 
cerning minority  representation  are  made  to  sections  7  and  8  of  article  4. 
But,  since  the  section  relating  to  minority  representation,  in  the  original  docu- 
ment, appears  as  the  second  separate  section,  it  was  thought  best,  in  dealing 
with  the  separate  sections,  to  permit  that  section  to  be  considered  as  sep- 
arate section  2  and  to  designate  the  following  separate  section  as  separate  sec- 
tion 3. 


310 


INDEX. 


AUDITOR   OF   PUBLIC   ACCOUNTS 

See   Elections 
duties,  art.  5,  sec.   1 
election,  art.   5,   sec.   5 
eligibility  to  other  offices,  art.  5,  sec.  5 
General   Assembly 
expenses     of,     duty     to     report,     art.     4,. 

sec.    17 
mileage    of    members,    duty    to    compute, 
art.    4,    sec.   21 
report  to  Governor,  art.  5,   sees.   20,  21 
residence  at  capital,  art.  5,  sec.   1 
salary,  art.   5,  sec.   23 
term  of  office,  art.  5,  sec.  1 
vacancy,  art.  5,  sec.  20 

BAIL 

See  Offenses 

BALLOT 

See   Suffrage 

BANKS 

banking  corporations,  laws  authorizing  for- 
mation, submission  to  people,  art.  11, 
sec.   5 

of   issue 
deposit  of  security,  art.    11,  sec.   8 
specie     payment,     suspension     of,     art.     11, 
sec.    7 

state  bank,   art.    11,   sec.   5 

state,  financial  interest  in,  art.  11,  sec.  5 

statements,  art.   11,  sec.  7 

stockholders 
liability,    art.    11,    sec.    6 
registry,  art.   11,  sec.  8 

BILL    OF    RIGHTS 
art.   2 

BILLS 
See    General   Assembly 

BLOOD 

corruption    of,    effect    of    conviction,    art.    2, 
fiec.  11 
BOARD    OF    COUNTY    COMMISSIONERS 
See    Counties 

BOUNDARIES 
state,  art.  1 

CANALS 

credit   of   state,  in  aid  of,  separate  sec.   4 

deep   waterway 
bonds   in  aid   of,   separate   sec.    4 
power  from,    leasing  of,   separate   sec.    4 

Illinois    and    Michigan    Canal,    sale    or    lease 
of,  separate  sec.  4 

CAPITAL   STOCK 
municipal   subscriptions,    separate,    sec.    3 
railroads 

fictitious    increase,   art.    11,    sec.    13 

increased,  how,  art.  11,  sec.   13 

transfer,   art.    11,  sec.   9 

CAPITOL 

expenditure  for,  art.   4,   sec.   33 

CHICAGO 
debt  limit,   art.  4,  sec.   34;  art.  9,  sec.   13 
local  government  of,   special  legislation,   art 

4,   sec.    34 
municipal  courts,  art.  4,   sec.  34 


CHIEF   JUSTICE 

circuit    and    superior    courts,    Cook    County, 

art.  6,  sec.  24 
supreme  court,  art.  6,  sec.  2 


CIRCUIT    COURTS 

See    Courts 

C'lTY   COURTS 
See    Courts 

CIVIL    POWER 

military  subordinate,  art.  2,  sec.   15 

CLAIMS 

against   state,    void,   when,   art.    4,    sec.    19 

CLERKS 

county,   term   and  election,   art.    10,   sec.   8 
courts   of   record 
Cook   County 
assistants 
compensation,  art.   10.  sec.   9 
number,  art.   10,  sec.  9 
duties,   art.   6,   sec.   32 
election,   art.   6,   sec.    27 
removal,    art.    6,    sec.    30 
residence,    art.    6,    sec.    32 
salaries,   art.    10.   sec.    9 
terms,   art.    6,    sees.    27,   32 
vacancies,  art.  6,  sec.  32 
in  general 
circuit,  term  and  election,  art.  10,  sec.  8 
clerk  hire,  art.   10,  sec.   10 
county,  term  and  election,  art.  6,  sec.  18 
removal,   art.    6,   sec.  30 
residence,   art.    6,   sec,   32 
salaries,   art.   6,   sec.    32;   art.    10,   sec.    10 
supreme,     term     and     election,     art.     6, 

sec.  10 
terms,  art.  6,  sec.  32;  art.   10,  sec.  8 
vacancies,  art.  6,  sec.  32 

COMMITTEES    OF   THE    WHOLE 
open  session,  art.  4,  sec.   10 

COMMON    CARRIERS 
See   Railroads 

COMMUTATION 
See  Pardons;  Revenue 

COMPENSATION 

See   Claims;     Eminent     Domain;     Fees     and 
Salaries 

CONSCIENCE 
See  Religion 

CONSOLIDATION 
See   Railroads 

CONSTABLES 

See  Justices  of  the   Peace  and   Constables 

CONSTITUTIONAL    AMENDMENTS 

See   Amendments  to   Constitution 


CONTEMPT 
See   General  Assembly 


311 


INDEX. 


CONTRACTS 

county,  art.  4,  sec.  15 

laws    impairing   obligation,   art.    2,    sec.    14 

school,    art.    8,    sec.    4 

state,  art.  4,  sec.   15. 

supplies   for  state,   art.    4,   sec.   25 

CONVENTION 

See    Amendments    to    Constitution 

CONVICT   LABOR 
separate     sec.     5 

CORONER 

See  County  Officers 

CORPORATIONS 

art.   11.     See  Banks;  Railroads 
directors,  how  elected,  art.  11,  sec.  3 
municipal    subscriptions     and     aid,     separate 

sec.   3 
organization 

general  law,   art.    11,   sec.    1 

special  law,  art.    11,  sees.   1,  2 
street    railways,    right    to    use    streets,    art 

11,    sec.    4 

CORRUPTION  OF  BLOOD 
See  Blood 

COUNTIES 

board    of    commissioners.    Cook    county,    art 
10,  sec.  7 

board  of  county  commissioners 
duties,  art.   10,  sec.   6 
election,  art.  10,  sec.   6 
term,   art.   10,  sec.   6 

boundaries,    art.    10,   sec.    1 

county  seats,  removal,  art.   10,   sec.  4 

division,   art.    10,  sees.  2,  3 

indebtedness,   effect  of   formation   of  new   or 
division,  art.   10,   sec.   3 

new,   formation  of,  art.   10,   see.   1 

taxes,  power  to  levy,  art.   10,   sec.   8 

township  organization 
adoption,  of,    effect,    art.    10,    sec.   5 
discontinued,   how,   art.   10,   sec.   5 
names  of  townships,  art.   10,  sec.   5 
township  meetings,   art.    10,   sec.   5 

COUNTY  OFFICERS 
Cook    County 

assistants 

compensation,    art.    10,    sec.    9 

number,  art.  10,  sec.  9 
election,    art.    10,   sec.    8 
salaries,  art.   10,  sec.  9 
terms,  art.   10,  sec.  8 
in   general 
clerk  hire,  art.   10,  sec.   10 
enumerated,    art.    10,    sec.    8 
expenses,  art.  10,  sec.  10 
re-election,   eligibility,   art.    10,  sec.   8 
salaries,   art.    10,   sec.    10 
terms,  art.   10,  sec.  8 

COUNTY    SEATS 
See  Counties 

COUNTY    SUPERINTENDENT   OF   SCHOOLS 
compensation,   art.   8,   sec.    5 
duties,  art.  8,  sec.  5 
election,   art.   8,   sec.   5 
powers,  art.   8,   sec.   5 
qualifications,   art.   8,   sec.  5 
terms,  art.   8,   sec.   5 


COUNTY  TREASURER 

See    County    Officers 

COURTS 

See  Clerks;  Judges 
appellate 
appeals  and  writs  of  error,  art.  6,  sec.   11 
authorized,   art.   6,  sec.   11 
districts,  art.  6,  sec.   11 

organization    and    jurisdiction,    uniformity, 
art.  6,  sec.  11 
circuit 
ai)peals   and   writs  of   error,   art.   6,   sec.   11 
circuits 
alteration 

effect,   art.   6,   sec.    13 
General      Assembly,      power,      art.      6, 
sees.   13,  15 
judicial  power  vested  in,  art.  6,  sec.  1 
jurisdiction,   art.    6,    sec.    12 
terms 

additional,   art.   6,   sec.    14 
changed,  how,  art.   6,  sec.   14 
number,   art.   6,    sec.    12 
circuit.   Cook  County 
branches,   art.   6,   sec.   24 
chief   justice,    art.   6,   sec.    24 
judges 
additional,   art.  6,   sec.   23 
number,  art.  6,  sec.  23 
city,  judicial  power  vested  in,  art.  6,  sec.   1 
county 
appeals  and  writs  of  error,  art.  6,  sec.   19 
districts   of  more  than   one  county,   art.   6, 

sec.    18 
judicial  powers  vested   in,   art.   6,   sec.    1 
jurisdiction,   art.   6,  sec.    18 
criminal,  Cook  County 
judges,  art.   6,  .sec.  26 
jurisdiction,  art.   6,  sec.    26 
in  general 
eligibility  of  judges,  art.  6,  sec.   17 
organization,      jurisdiction,      powers, 
ceedings    and    practice,    uniformity 
6,   sec.    29 
municipal,  in  Chicago,  art.  4,  sec.  34 
probate 
authorized,  art.   6,   sec.   20 
jurisdiction,  art.  6,  sec.  20 
superior.   Cook   County 
branches,    art.    6,    sec.    24 
chief  justice,  art.  6,  sec.  24 
judges 
additional,  art.  6,   sec.  23 
number,  art.  6,  sec.  23 
supreme 
appeals    and    writs    of    error,    art.    6,    sees 

8,  11 
chief  justice,   art.   6,   sec.    2 
decisions,   art.   6,   sec.   2 
districts 

alteration,   art.   6,   sees.   4,  5 
apportionment,   art.   6,   sec.   5 
established,   art.   6,  sec.   5 
grand  divisions,  art.  6,  sees.   4,  5 
jurisdiction,   art.   6,   sec.   2 
quorum,  art.  6.  sec.   2 
reporter  of  decisions,   art.   6,   sec.  9 
terms,  art.   6,   sec.   4 


CRIMINAL   OFFENSES 

See    Offenses 

CUMULATIVE  VOTING 
directors   of   corporations,   art.    11,   sec.    3 
General    Assembly,   house   of   representatives, 
art.    4,    sees.   7,   8 


pro- 
art. 


312 


INDEX. 


DEBT 

See  Indebtedness 

imprisonment  for,  art.   2,  sec.   12 

DEEP  WATERWAY 

See   Canals 

DELEGATES     TO     CONSTITUTIONAL     CON- 
VENTION 
election,   art.    14,  sec.    1 
number,   art.    14,   sec.    1 
oath,  art.  14,  sec.  1 
qualifications,   art.    14,    sec.    1 
vacancies,  art,   14,  sec.   1 

DEPARTMENTS 
See   Government 

DIRECTORS 
corporations,   how   elected,    art.    11,   sec.    3 
railroads,  art.   11,  sec.  11 

DISCRIMINATION 
railroad  rates,  art.   11,  sec.  15 
religious,  art.  2,  sec.  3 

DISQUALIFICATIONS 
See  Office 

DISTRIBUTION   OF  POWERS 
Art.   3 

DISTRICTS 
See   Courts;  Justices  of  the   Peace  and  Con- 
stables;   Senatorial  Districts 
drainage,  art.  4,  sec.  31 

DRAINAGE 

art.   4,   sec.   31 

DUE   PROCESS   OF  LAW 
art.   2,  sec.   2 

EDUCATION 

art.    8 

county    superintendent     of    schools,     art.     8, 

sec.   5 
donations,   art.   8,   sec.    2 
free  schools,  art.  8,  sec.  1 
school  contracts,  art.  8,  sec.  4 
sectarian  institutions,  aid  to,  art.  8,  sec.  3 

ELECTIONS 

See  Attorney  General;  Auditor  of  Public  Ac- 
counts; Clerks;  Counties;  County  Officers; 
General  Assembly;  Governor;  Judges;  Jus- 
tices of  the  Peace  and  Constables;  Lieu- 
tenant Governor;  Secretary  of  State;  State 
Treasurer;  State's  Attorneys;  Superinten- 
dent of   Public  Instruction 

free  and  equal,  art.   2,   sec.   18 

General  Assembly,  judge  of  election  of  mem- 
bers, art.  4,   sec.   9 

state    officers 
returns,  art.  5,  sec.  4 
tie,  how  decided,  art.   5,  sec.   4 

ELEVATORS 

See   Warehouses 

EMERGENCY  LAWS 
art.   4,  sec.   13 


EMINENT  DOMAIN 

compensation 
jury   to   a,scertain,   art.    2,   sec.    13 
owners      of      private      property     taken      or 

damaged   for   public   use  are   entitled   to, 

art.  2,  sec.   13 
railroads 

compensation,    jury    to    ascertain,    art.     11, 

sec.    14 
fee   of   land   taken  by,   remains   in   owners, 

art.   2,  sec.    13 
subject  to,   art.    11,    sec.    14 

EMPLOYMENT 

defined,   art.  5,  sec.   24 
ENACTING   CLAUSE 

art.   4,  sec.   11 
ENGLISH   LANGUAGE 

See  Proceedings 
EXECUTIVE    DEPARTMENT 

art.    5 

officers  constituting,  art.  5,   sec.   1 

EXECUTIVE    POWER 

e.\ercised  by  executive  department  only, 
art.  3 

EXEMPTION  LAWS    ' 

See  Homestead  and  Exemption  Laws 
EXEMPTIONS 

militia,  art.   12,  sees.   1,  6 
taxation,  art.  9,   sec.  3 

EXPENSES 

General  Assembly,  duty  of  Auditor  to  report, 
art.    4,   sec.    17 

government,  General  Assembly  to  appro- 
priate for,  art.  4,   sec,   18 

EX   POST  FACTO  LAWS 

art.  2,  sec.  14 
EXPULSION 

General  Assembly,  members,  art.  4,  sec.  9 

EXTORTION 

railroad  rates,  art.  11,  sec.  15 
FEES 
See  Claims;  Compensation 
classification    of    counties     for     purpose     of 

fixing,   art.    10,   sec.    12 
countv    and    township    officers,    art.    10,    sees. 

11,    12 
disposition     of,     art.     5,     sec.     23;     art.     10, 

sees.  9,  10 
officers    collecting,    duty     to     report,    art.    5, 

sec.    20;    art.    10,   sec.    13 
regulated     by     general     law,     art.     10,     sees. 

11,   12 
uniformity,  art.   10,  sees.   11,   12. 

FEES    AND    SALARIES 

See  Attorney  General;  Auditor  of  Public 
Accounts;  Clerks;  County  Officers;  County 
Superintendent  of  Schools;  General  As- 
sembly; Governor;  Judges;  Justices  of  the 
Peace  and  Constables;  Lieutenant  Gover- 
nor; Secretary  of  State;  State  Treasurer; 
State's  Attorneys;  Superintendent  of  Pub- 
lic Instruction 

alteration  during  term  of  office,  art,  4,  sees. 
21,  22;  art.  5,  sec.  23;  art.  6,  sees.  7,  16, 
25;    art.   9,   sec.    11;   art.    10,   sec,   10 

classification  of  counties  for  purpose  of 
fixing,  art.  10,  sec.  10 


313 


INDEX. 


FORFEITURE 
estate,  effect  of  conviction,  art.  2,  sec.    11. 
railroads  subject  to,  when,  art.  11,  sec.   15 

FRANCHISE 

appeals  and  writs  of  error  in  cases  involving, 

art.  6,  sec.   11 
railroads,   subject  to  forfeiture,  when,  art.  11, 

sec.  15 

FREE  SPEECH 

See   Speech 

GENERAL  ASSEMBLY 
See    Appropriations;      Lieutenant      Governor; 

Minority  Representation 
adjournment,  art.  4,  sec.   10;  art.  5,  sec.  9 
appointments 
confirmation    by    senate,    art.    5,    sees.   10, 

eligibility  to,  art.  4,  sec.  15 
power  of,  art.  5,  sec.   10 
bills 
amendments,  art.  4,  sec.   12 
origin,   art.  4,  sec.   12 
passage,  final 
journal,    entry   of  yeas   and    nays,   art.    4, 

sec.   12;  art.  5,  sec.   16 
manner  of   voting  on,  art.  4,  sec.   12 
speakers,    signature   of,   art.   4,   sec.    13 
vote   required,  art.  4,   sec.    12 
yeas  and  nays,  art.  4,  sec.   12 
printing,    art.   4,    sec.    13 
reading,  art.  4,  sec.   13 
rejection  by  either  house,  art.  4,  sec.   12 
veto,   art.   5,   sec.   16 
branches,  art.  4,  sec.  1 
contempt,   power  to  punish,   art.   4,   sec.   9 
debts,  may   contract,   when,   art.   4,   sees.    18. 

19 
house    of    representatives 
elective,  art.   4,  sec.   1 
members 

election,  art.  4,  sees.  2,  7,  8 
number,   art.  4,   sees.   7,  8 
terms,  art.  4,  sees.   7,  8 
session,     opening,     who     presides,     art.     4, 
sec.  9 
journal  of  proceedings 
entries    upon 
dissent  and  protest,  art.  4,  sec.   10 
yeas    and    nays 
final  passage  of  bills,  art.  4,  sec.    12 
passage  over  veto,  art.  5,  sec.   16 
right  to  have  recorded  on  any  question, 
art.    4,    sec.    10 
necessity  for,  art.  4,  sec.  10 
laws 
amendment  by  reference,   art.  4,  sec.   13 
emergency,  art.   4,  sec.    13 
operative,  when,  art.  4,  sec.   13 
revivification   by   reference,    art.    4,    sec.    13 
style,   art.   4,   sec.    11 
subject,   art.    4,   sec.    13 
title,    art.    4,    sec.    13 
members 

contracts,    state    and    county,    interest    in, 

art.  4,  sees.   15,  25 
disqualifications,  art.  4,  sec.  4 
election,  returns  and  qualifications,  who  to 

judge,   art,   4,  sec.   9 
elections,  art  4,   sees.   2,   6,   7,  8 
expulsion,  art.  4,  sec.   9 
mileage,  art.  4,  sec.  21 
oath,  art.  4,  sec.  5 
privileges,  art.  4,  sec.  14 
protest,  right  of,  art.  4,  sec.  10 
qualifications,  art.  4,  sec.  3 


GENERAL    ASSEMBLY— Concluded. 

members — concluded 
salary,   art.   4,   sec.  21 
yeas  and  nays,  right  to  nave  recorded,  art 
4,  sec.   10 
officers  of,  how  chosen,  art.  4,  sec.  9 
quorum,  art.  4,  sec.  9. 
rules  of  proceedings,  art.  4,  sec.  9 
senate 
elective,  art.   4,  sec.   1 
members 
election,   art.  4,  sees.  2,  6 
number,   art.   4,   sec.   6 
terms,  art.  4,   see.  6 
president,  art.  5,  sec.   18 
pro  tempore  presiding  officer,  art.  5,  sec.  18 
temporary  president,  art.  4,  sec.  9 
sessions 


caoiuiio 

open,  art.  4,  sec.   10 
special,  art.   5,   sec.   8 
time  of,  art.  4,  sec.  9 
yeas   and   nays,    art.    4, 
sec.  16 


sees.    10,   12;   art.   5, 


GOVERNMENT 
powers,  division  of,  art.  3 
principles,   recurrence  to,  art.   2,  sec.  20 

GOVERNOR 

See  Elections 

appointments,   powers,   art.   5,   sees.   10,  11 

army    and    navy,    commander    in    chief,    art 

5,  sec.  14 
contracts  for  supplies,   approval,  art.   4,  sec. 

25 
duties,   art.   5,   sec.    1 
election,   art.   5,   sec.   3 
eligibility  to  other  offices,  art.  5,  sec.  5 
executive  power,  supreme,  art.  5,  sec.  6 
General   assembly 

adjournment  of,  powers,  art.  5,  sec.  9 

estimates    of    money    needed,    duty    to    fur- 
nish, art.  5,  sec.  7 

message  to,  art.   5,  sec.   T 

report  to,  duty,  art.  5,  sec.  7 

special    session   of,    power   to    call,    art.    5, 
sec.   8 

vacancies,  writs  of  election,  duty  to  issue, 
art.  4,  sec.  2 
impeachment,  art.  4,  sec.  24;  art.  5,  sec.   15 
Lieutenant    Governor   to    act    as,    when,    art. 

5,   sec.    17 
officers,   removal  of,  powers,  art.   5,   sec.    12 
pardons,   art.  5,   sec.    13 
president    of    senate    to    act    as,    when,    art. 

5,  sec.  19 
qualifications,    art.    5,    sec.   5 
residence  at  capital,  art.  5,  sec,  1 
salary,  art.  5,  sec.  23 
speaker    of    house    to    act    as,    when,    art    5, 

sec,  19 
term  of  office,  art.  5,  sec.   1 
veto,  art.   5,   sec.   16 

GRAIN 

inspection,  art.  13,  sec.  7 

producers    and    shippers,    protection    of,    art. 

13,  sec.  7 
railroads,  duties  as  to  shipments  of,  art.   13, 

sees.  4,  5 

GRAND   JURY 

abolition  of,   art.   2,    sec.   8 

indictment  by,  necessary,   when,   art,   2,   sec 


HABEAS  CORPUS 
writ  of,  suspension  of,  art,  2,  sec.  7 


314 


INDEX. 


HAPPINESS 
pursuit  of,  art.  2,   sec.   1 

HIGHWAYS 
See  Roads  and  Highways 

HOMESTEAD  AND  EXEMPTION  LAWS 

General  Assembly,  duty  to  pass,  art.  4,  sec. 

HOUSE   OF   REPRESENTATIVES 

-See  General  Assembly 

ILLINOIS  CENTRAL  RAILROAD 
separate  sec.   1 

IMPEACHMENT 
civil  officers,  art.  5,  sec.  15 
conviction,  eflfect,  art.  4,  sec.  24 
Governor,    art.    5,    sec.    15 
procedure,    art.    4,    sec.    24 

IMPRISONMENT 

See  Debt 

contempt.   General  Assembly,  punishment  bv. 
art.   4,   sec.  9 

INDEBTEDNESS 
Chicago,    art.    4,   sec.    34 
counties,     alteration     of    boundaries,     effect. 

art.   10,  sec.  3 
municipal 
limitations  on,  art.   9,  sees.   12,   13 
property  in 
interest,   duty  to  levy   taxes   for,   art.    9, 

sec.    12 
liability  for,  art.   9,  sec.   10. 
principal,  duty  to  levy  taxes  for,  art.  9, 

sec.    12 
release  of,  art.  4,  sec.  23;  art.  9,  sec.  6. 
sale   for,    art.    9,   sec.    10 
state 
power  to  contract,  art.  4,  sees.  18,  19 
release  of,  art.  4,  sec.  23;  art.  9,  sec.  6 

INDICTMENT 
See  Grand  Jury 

INJURIES 
remedy  should  be  provided,  art.  2,  sec.  19 

INSPECTION 
See  Grain 

INSURRECTION 

habeas    corpus,    writ    of,    suspension,    art.    2, 

sec.  7 
suppression   of 

debts  may  be  contracted,  art.  4,   sees.   18, 
19 

militia,   Governor  may  call,  art.   5,   sec.    14 

INVASION 
See   Insurrection 

ITEMS 

See  Appropriations 

JEOPARDY 
art.  2,  sec.   10 


JOURNAL 

See  General  Assembly 

JUDGES 

iSee  Clerks;  Courts 

commissioned  by  Governor,  art  6,  sec.  29 
courts 
appellate,   salary,  art.   6,  sec.   11 
circuit 

duties,   art.    6,    sees.    16,    32 

election,  art.  6,  sees.   13,  15 

eligibility,  art.  6,  sec.   17 

resiaeuce,   art.   6,    sec.    32 

salary,  art.  6,  sec.  16 

terms,  art.  6,  sec.   12 

vacancies,   art.  6,   sec.   32 
circuit.    Cook    County 

duties,  art.  6,  sees.  16,  32 

election,  art.  6,  sec.  23 

eligibility,    art.    6,    sec.    17 

residence,  art.   6,   sec.  32 

salary,  art.  6,  sec.  25 

term,  art.  6,  sec.  23 

vacancies,  art.  6,  sec.  32 
county 

duties,  art.   6,  sec.  32 

election,  art.  6,  sec.  18;  art.  10,  sec.  8 

eligibility,  art.  6,  sec.  17 

residence,   art.    6,  sec.   32 

salary,  art.  6,  sec.  32;  art.  10,  sees.  9,  10 

term,  art.  6,  sec.  18;  art.  10,  sec.  8 

vacancies,  art.   6,  sec.  32 
criminal,    Cook   County,   art.   6,  sec.   26 
probate 

duties,  art.  6,  sec.  32 

election,   art.   6,   sec.   20 

eligibility,    art.    6,   sec.    17 

residence,   art.   6,  sec.  32 

term,  art.  6,  sec.  20 

vacancies,   art.  6,  sec.  32 
superior.    Cook    County 

duties,  art.  6,  sec.  32 

election,  art.  6,  sec.  23 

eligibility,  art.  6,  sec.   17 

powers,   art.   6,  sec.   24 

salary,  art.  6,  sec.  25 

term,  art.  6,  sec.  23 

vacancies,  art.  6,  sec.  32 
supreme 

duties,    art.    6,   sees.    16,   32 

election,   art.   6,   sec.   6 

eligibility,   art.   6,   sec.   3 

number,  art.  6,  sec.  2 

residence,  art.  6,   sec.  32 

salary,    art.    6,    sec.    7 

term,   art.   6,  sec.   6 

vacancies,   art.   6,   sec.   32 
removal,   art.   6,   sec.   30 
reports,  duty  to  make,  art.   6,   sec.   31 

JUDICIAL    DEPARTMENT 
art.  6 

JUDICIAL  OFFICERS 

See    Clerks;    Judges;    Justices    of   the    Peace 
and  Constables;  State's  Attorneys 

JUDICIAL    POWERS 
See  Courts;  Justices  of  the  Peace  and  Con- 
stables 
exercised  by  judicial  department  only,  art.  3 

JURISDICTION 

See  Courts 


315 


INDEX. 


JUR'S 
See  Grand  Jury 
eminent    domain,    art.    2,    sec.    13;    art.    11, 

sec.    14 
justices    of    the    peace,    civil    cases,    art.    2, 

sec.  5 
persons   accused   of  crime,  rights  of,   art.   2, 

sec.  9 
trial  by,  guaranteed,  art.  2,  sec.  5 


JUSTICE 

free  and  prompt,   art. 

THE 


2,  sec.  19 
PEACE  AND 


CON- 

6.  sec.  29 


JUSTICES  OF 
STABLES 

Chicago,  abolition,   art.   4.  sec.  34 
commissioned    by    Governor,    art. 
Cook  County 

appointment,   art.   6,   sec.   28 

jurisdiction,    limitation,   art.    4,    sec.    34 

removal  from  office,  art.  6,  sec.  28 

terms,   art.   6,   sec.    28 
in   general 

districts,   election,   art.   6,   sec.   21 

duties,    art.    6,    sec.    32 

election,   art.  6,  sec.  21 

judicial  power  vested  in,   art.   6,   sec.    1 

jurisdiction,   uniformity,  art.  6,  sec.  21 

jury  trials,   art.   2,  sec.  5 

lucrative    office,    art.    4,    sec.    3 

removal  from  office,  art.  6,  sec.   30 

residence,    art.    6,    sec.   32 

terms,  art.  6,  sec.  32 

vacancies,   art.   6,  sec.   32 

LANGUAGE 

See   Proceedings 

LAWS 

See    General   Assembly;    Special    Legislation 

LEGISLATION 
See    General   Assembly;    Special   Legislation 

LEGISLATIVE  DEPARTMENT 
art.  4 

LEGISLATIVE    POWER 

See   General   Assembly 

exercised    by     legislative     department     only, 
art.  3 

LIBEL 

truth  a  defense,  when,  art.   2,   sec.   4 

LIBERTY 

deprivation   of,    due    process    of    law,    art.    2, 

sec.   2 
preservation  of,  art.  2,  sec.  20 
secured,   art.   2,   sec.    1 

LIEUTENANT  GOVERNOR 

See   Elections 

duties,  art.  5,  sec.  1 

election,   art.   5,   sec.  3 

eligibility  to   other  offices,  art.   5,   sec.  5 

Governor  to  act   as,   when,   art.   5,   sec.   17 

qualifications,  art.  5,  see.  ;> 

report    to    Governor,    art.    5,    sees.    20,    21 

salary,    art.   5,   sec.    23 

senate 

president   of,   art.    5,   sec.    18 

voting  in,  art.  5,  sec.  18 
term  of  office,  art.  5,  sec.  1 
vacancy,  art.   5,  sec.  20 


LIFE 
deprivation   of,    due    process    of    law,    art.    2, 

sec.   2 
right   to    and    protection    of,    art.    2,    sec.    1 

LOCAL   IMPROVEMENTS 

See  Special  Assessments 

LOCAL  LEGISLATION 

See  Special  Legislation 

LOTTERIES 
art.  4,  sec.  27 

LUCRATR'E   OFFICE 
See  Office 

iVIESSAGE 
See  Governor 

MILEAGE 
See  General  Assembly 

MILITARY 
See  Civil  Power 

MILITIA 
art.   12;  See  Governor,  Insurrection;  Soldiers 
appointments   in,   lucrative     offices,     art.     4, 

sec.  3 
criminal    offenses    in,     prosecution,      art.     2, 

sec.  8 
formation  of,  art.  12,  sec.  2 
members,  privileges,  art.   12,  sec.  4 
officers 

commissioned  by  Governor,  art.  12,  sec.  3 

terms,  art.  12,  sec.  3 
records,  banners,   relics,  preservation  of,  art. 

12,   sec.   5 
service  in,  who  liable  to,  art.   12,  sees.   1,  6 

MILL   TAX 

abolished,  schedule,  sec.   23 

MINERS 
protection  of,  duty  of  General  Assembly,  art. 
4,   sec.   29 

MINES 
See  Miners 
railroads,  duty  of,  art.  13,  sec.  5 

MINISTRY 

See  Religion 

MINORITY   REPRESENTATION 

plan  of,  art.  4,  sees.  7,  8 

MISDEMEANORS 
definition,   art.   2,   sec.  8 
prosecution,   art.   2,  sec.  8 

MUNICIPAL   CORPORATIONS 

See    Aid;    Capital    Stock;    Corporations;    In- 
debtedness 

officers 
compensation,   art.   9,   sec.    11 
disqualifications,  art.  9,  sec.  11 

MUNICIPAL  COURTS 
See  Courts 

MUN^C1PAL    SUBSCRIPTIONS    TO    PRIVATE 
CORPORATIONS 
See  Capital  Stock 


316 


INDEX. 


NAVY 

See  Militia 

NOTARY   PUBLIC 
not  a  lucrative  office,  art.  4,  sec.   3 

OATH 

See  Religion 

civil  officers,   art.  5,  sec.   25 
General  Assembly,   members   of,    art.   4,    sec. 
5 

OFFENSES 
criminal 
appeals,  Cook  County,  art.  6,  sec.  26 
accused,  rights  of,  art.  2,  sees.  9,  10 
bail,  art.  2,  sec.   7 
conviction,    effect,    art.    2,    sec.    11;    art.    7, 

sec.  7 
indictment,   art.   2,   sec.  8 
jeopardy,  art.  2.  sec.  10 
jury  trial,  art.  2,  sees.  5,  9 
penalties,  art.  2,  sec.  11 
trial,  art.  2,  sec.  9 

OFFICE 

appointments  to,  art.  5,  sec.   10 

defined,  art.  5,  sec.  24 

disqualifications,   art.   4,   sec.   4;   art.    9,    sec 

11 
lucrative,  what  are  not,  art.  4,  sec.  3 
qualifications,   art.    4,   sec.   3;   art.   5,   sec.   5; 

art.   6,  sees.  3,   17,  32;  art.  7,  sec.   6;   art. 

8,  sec.  5 
removal  from,  art.  4,  sec.  24;  art.  5,  sees.  12, 

15;  art.  6,  sees.  9,  28,  30 
term,  extension  of,  art.  4,  sec.  28 
vacancies,  art.  4,  sec.  2;  art.  5,  sees.  11,  20; 

art.  6,  sec.  32;  art.  14,  sec.  1 

OFFICERS 

See  Attorney  General;  Auditor  of  Public  Ac- 
counts; Clerks;  County  Officers;  Elections; 
General  Assembly;  Governor;  Judf?es;  Jus- 
tices of  the  Peace  and  Constables;  Lieu- 
tenant Governor;  Militia;  Municipal  Cor- 
porations; Oath;  Office;  Secretary  of  State; 
State  Treasurer;  State's  Attorneys;  Su- 
perintendent of  Public  Instruction 

OPINIONS 
See  Religion 

PARDONS 
governor,  power  of,  art.  5,  sec.  13 

PENALTIES 
See  Offenses 

POLICE  MAGISTRATES 
See  Justices  of  the  Peace  and  Constables 

POPULATION 
defined,  art.  6,  sec.  33 

POWERS  OF  GOVERNMENT 
distribution,   art.   3 
exercise,  art.  3 

PREAMBLE 
Page  13 

PRESIDENT   OF  SENATE 
See    General    Assembly;    Governor;    Lieuten- 
ant   Governor 


PRIVILEGES 
General  Assembly,   members,   art.   4,   sec.   14 
militia,  art.  12,  sec.  4 
special,  art.  2,   sec,  14;  art.  4,  sec.  22 
voters,  art.  7,  sec.  3 

PROBATE  COURTS 

See  Courts 

'proceedings 

executive,    legislative,     judicial,     publication 
and   preservation   of,    schedule,    sec.    18 

PROCESS 
art.  6,  sec.  33 

PROPERTY 

See    Revenue 

due  process  of  law,  art.  2,  sec.  2 

eminent  domain,  art.  2,  sec.  13;  art.  11,  sec. 

14 
injury,   remedy,   art.   2.   sec.   19 
municipal  debts,  liability,   art.   9,  sec.   10 
protection  of,  art.  2,  sec.  1 
railroads 

eminent  domain,  art.   11.  sec.  14 

forfeiture,   art.    11,   sec.    15 

movable,  subject  to  execution,  art.  11,  sec. 
10 

PROSECUTIONS 
See  Offenses 

carried   on.  how,  art.  6,  sec.  33 
conclude,  how,  art.  6,  sec.  33 

PROTEST 

See   General   Assembly 

QUALIFICATIONS 
See  Office 

QUORUM 

See   General   Assembly 

RAILROADS 

See  Aid;   Capital  Stock;   Directors;   Eminent 

Domain;  Grain 
coal  banks  and  yards,  duties,  art.   13,  sec.  5 
consolidation,  art.   11,  sec.   11 
execution,   rolling   stock   subject  to,    art.    11, 

sec.  10 
forfeiture,   property  subject  to,   art.    11,   sec. 

15 
organization,  art.  11,  sec.  9 
public  highways,  art.  11,  sec.  12 
rates 

discrimination   and   extortion,   art.    11,    sec. 
15 

transportation,  art.  11.  sec.  12 
report  to  Auditor,  art.   11,  sec.  9 
stockholders,   registry  of,   art.    11.   sec.   9 
warehouses,  duties,  art.  13,  sec.  5 

RATES 

See  Railroads 

REAL  ESTATE 

See  Revenue 

REBELLION 
See  Insurrection 

RECORDER  OF  DEEDS 
See  County  Officers 


317 


INDEX. 


RECORDS 

See  Militia;   Proceedings 

REDEMPTION 
See  Revenue 

RELIGION 
civil   and   political  rights,   no   denial   on  ac- 


guaranteed, 


count  of,   art.   2,  sec.   3 
free    exercise     and     enjoyment, 

art.  2,  sec.  3 
improper  practices,  art.  2,  sec.  3 
licentiousness,  art.  2,  sec.  3 
ministry  or  place    of    worship,     support     of 

against  consent,   art.   2,    sec.   3 
oaths  and  afSrmations,  art.  2,  sec.  3 
preferences   to   religious    denominations,    art. 

2,  sec.  3 
sectarian  institutions,  aid  to,  art.  8,  sec.  3 

REMEDY 

See  Injuries 

REMOVAL  FROM   OFFICE 
See  Office 

REPORTER  OF  DECISIONS 
appointment,  art.  6,  sec.  9 
removal,  art.  6,  sec.  9 

REPORTS 

See  Attorney  General;  Auditor  of  Public 
Accounts;  Clerks;  County  Officers;  General 
Assembly;  Judges;  Lieutenant  Governor; 
Railroads;  Secretary  of  State;  State 
Treasurer;  Superintendent  of  Public  In- 
struction 

REPRESENTATIVES 
address,  right  of  people,  art.  2,  sec.  17 

REPRESENTATIVES,    HOUSE    OF 
See   General  Assembly 

REPRIEVES 

See  Pardons 

REPUTATION 

See  Injuries 

RESIDENCE 
qualification  for  office,  art.  4,  sec.  3;  art.  5, 
sec.  5;  art.  6,  sees.  3,  17,  32;  ait.  7,  sec.  6 
state  officers  at  capital,  art.  5,  sec.  1 
voters,  art.  7,  sees.  1,  4,  5 

REVENUE 

art.   9 
taxation 
exemptions 
general  law,  art-   9,  sec.   3 
property  subject  to,  art.   9,   sec.   3 
municipal 

corporate  purposes 
corporate  authorities,  power  of,  art.  9, 

sees.   9,   10 
General    Assembly,    power    of,    art.    9, 
sec.    10 
counties,  power  of,  art.  9,  sec.  8 
general   property   tax,   art.    9,   sees.   9,    10 
special   assessments,    art.    9,    sec.    9 
uniformity,    art.    9,    sees.    9,    10 
real    estate,    sale    of,    for    non-payment    of 
taxes 

procedure,   art.  9,  sec.   4 
redemption,    art.    9,    sec.    5 


REVENUE— Concluded, 
state 

commutation,   art.   9,  sec.   6 

enumerated     trades     and     occupations, 
art.  9,   sec.   1 

General  Assembly,   general  power,  art. 
9,   sec.   2 

general  property  tax,  art.  9,  sec.  1 

release,  art.  9,  sec.  6 

taxes,    payment   of,    into    State    Treas- 
ury,   art.    9,    sec.    7 

uniformity,   art.    9,   sec.    1 

valuation,   agency  to   ascertain,   art.   9, 
sec.    1 

REVIVIFICATION  OF  LAWS 
See  General  Assembly 

ROADS  AND  HIGHWAYS 
cities,    towns    and   villages,    control    of,    art. 

11,  sec.  4 
General  Assembly,  power  of,  art,  4,  sec.  30 
railroads    declared    public   highways,   art.    11, 
sec.  12 

ROLLING  STOCK 
See  Railroads 

SALARIES 

See  Fees   and   Salaries 

SCHOOLS 
See  Education 

SEAL   OF   STATE 
custody,  art.  5,  sec.  22 

SEARCH    WARRANTS 
affidavit,   art.   2,   sec.   6 
probable  cause,  art.  2,  sec.   6 

SEARCHES   AND    SEIZURES 
unreasonable,  art.   2,  sec.  6 

SECRETARY'  OF  STATE 

See    Elections 

duties,   art.   5,   sec.    1 

election,    art.    5,    sec.    3 

eligibility  to  other  offices,  art.   5,  sec.   5 

house    of   representatives,     presiding     officer, 

when,  art.    4,   sec.   9 
report  to   Governor,   art.   5,  sees.   20,  21 
residence  at  capital,  art.  5,  sec.  1 
salary,    art.    5,   aec.    23 
seal  of  state,  custody,  art.  5,  sec.  22 
term   of   office,    art.    5,   sec.    1 
vacancy,  art.  5,   sec.  20 

SECTARIAN    INSTITUTIONS 

See  Aid 

SEIZURES 
See    Searches    and    Seizures 

SENATE 
See    General  Assembly 

SENATORIAL    DISTRICTS 
apportionment,   art.   4,   sec.   6 
boundaries,  art.  4,  sec.  6 
compact    and    contiguous    territory,    art.    4, 

sec.    6 
population,   required   ratio,   art.   4,   sec.    6 


318 


INDEX. 


SENATORS 

See   General   Assembly 

SESSIONS 
See    General    Assembly;    Special    Session    of 
the    General    Assembly 

SHERIFF 

See    County    Officers 

SO^LDIERS 
See    Militia 

quartering  of,   art.    2,   sec.    16 
vote,   right   to,   art.   7,   sees.   4,   5 

SPEAKER    OF    HOUSE 
See  General  Assembly;    Governor 

SPECIAL    ASSESSMENTS 
cities,   towns  and   villages,   art.    9,    sec.    9 
drainage    districts,    art.    4,   sec.    31 

SPECIAL    LEGISLATION 
Chicago,  local  government  of,  art.  4,  sec.  34 
corporations,  organization  of,  art.   11,  sec.   1 
county   seats,   removal,   art.    10,   sec.   4 
enumerated  subjects,  art.  4,  sec.  22 
exemption    from    taxation,    art.    9,    sec.    3 
fees,    countv    and    township    officers,    art.    10, 

sees.   11,   12 
township    organization,    art.    10,    sec.    5 

SPECIAL    SESSION    OF    THE    GENERAL    AS- 
SEMBLY 

business   of,   art.    5,    sec.    8 
Governor,    power   to   call,    art.    5,    sec.    8 

SPEECH 

See  Libel 
freedom  of 

responsibility  for,  art.   2,   sec.   4 

secured,   art.   2,   sec.    4 

General     Assembly,     members,     privileges, 
art.   4,   sec.    14 

STATE 
suits  against,  art.  4,   sec.  26 

STATE  TREASURER 

See    Elections 

duties,  art.  5,  sec.  1 

election,   art.   5,   sec.   3 

reelection,   eligibility,   art.  5,  sec.   2 

report  to  Governor,  art.  5,  sees.  20,  21 

residence  at  capital,  art.  5,  sec.   1 

salary,   art.   5,   sec.    23       • 

security,    additional,   art.    5,   sec.   2, 

term  of  office,  art.  5,  sec.   2 

vacancy,  art.   5,  sec.  20 

STATE'S    ATTORNEYS 
Cook  County,  salary,  art.  6,  sec.  25 
in  general 

commissioned  by  Governor,  art.   6,   sec.   29 

duties,    art.    6,    sec.    32 

election,   art.    6,   sec.   22 

removal,  art.   6,  sec.  30 

residence,   art.  6,  sec.  32 

terms,   art.   6,    sec.   22 

vacancies,    art.    6,    sec.    32 

STOCKHOLDERS 
See   Banks;   Railroads 

STREET   RAILWAYS 

See    Corporations 


SUFFRAGE 

ballot,   voting   by,   art.    7,   sec.    2 

conviction   of   infamous   crime,   effect,   art.   7, 

sec.   7 
soldiers,  art.  7,  sees.  4,  5 
voters 

disqualifications,    art.    7,    sec.    7 

privileges,    art.    7,    sec.    3 

qualifications,    art.    7,    sec.    1 

residence,  art.   7,  sees.   1,  4,  5 

SUPERINTENDENT    OF    PUBLIC    INSTRUO- 
TION 

See   Elections 

duties,  art.  5,  sec.   1 

election,    art.    5,    sec.    3 

eligibility  to  other  offices,  art.  5,   sec.  5 

report  to  Governor,  art.  5,  sees.  20,  21 

residence  at   capital,   art.   5,  sec.    1 

salary,    art.    5,    sec.    23 

term   of  office,   art.   5,   sec.   1 

vacancy,    art.    5,    sec.    20 

SUPREME    COURT 

See    Courts 

TAXATION 
See  Revenue 

TITLE  OF  ACTS 
See    General    Assembly 

TOWNSHIPS 
See    Counties 

TREASURER 

See  County  Officers;  State  Treasurer 

TRIAL    BY   JURY 

See  Jury 

UNIFORMITY 

See  Courts;  Fees;  Justices  of  the  Peace  and 
Constables;    Taxation 

vacancie;^ 

See  Attorney  General;  Auditor  of  Public  Ac- 
counts; Clerks;  General  Assembly;  Judges; 
Justices  of  the  Peace  and  Constables; 
Lieutenant  Governor;  Secretary  of  State; 
State  Treasurer;  State's  Attorneys;  Super- 
intendent of  Public  Instruction 

VALUATION 

See   Revenue 

VETO 

Governor,  power  of,  art.  5,  sec.  16 

VOTE 

See    Suffrage 

VOTER 
See    Suffrage 

WAREHOUSES 
art.    13 

definition,    art.    13,    sec.    1 
owners,   duties  of,   art.    13,   sec.   2 
railroads,   duties  of,  art.   13,   sec.   5 
recei]  ts,    fraudulent.    ar+.    13,    sec.    6 
stored  property,  right  of  owners  to  examine, 
art.   13,   sec.  3 


319 
INDEX. 

WARRANTS  WRIT    OF    ERROR 

See   Appropriations;    Search   Warrants  See    Appeals    and    Writs    (f    Error 

WITNESSES  W^RONGS 

accused  persons,  rights  of,  art.   2,   sec.    9  See   Injuries 

WORSHIP  YEAS  AND  NAYS 

See    Religion  See  General  Assembly 


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